Perez v. Boston Housing Authority

• Decision Date: 04 February 1980
• Citation: 400 N.E.2d 1231,379 Mass. 703
• Parties: Armando PEREZ et al. 1 v. BOSTON HOUSING AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1231

400 N.E.2d 1231

379 Mass. 703

Armando PEREZ et al. ¹ v. BOSTON HOUSING AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 9, 1979.

Decided Feb. 4, 1980.

[379 Mass. 704] Mark A. Michelson, Boston (Paul M. Stein, Boston, with him) for defendant.

Bruce E. Mohl, Boston, for plaintiffs.

Gerard J. Clark, Boston, for the Boston Public Housing Tenants' Policy Council, Inc., intervener.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

Nine persons, tenants in various developments of the Boston Housing Authority (BHA), brought this action for themselves and on behalf of the whole class of tenants of BHA similarly situated, seeking to vindicate their statutory rights to decent, safe, and sanitary housing. (See G.L. c. 121B, § 32; also c. 111, § 127H.) The judge below found at successive stages of the action that many of the units and common facilities of BHA housing were in substandard conditions in violation of the State sanitary code (see G.L. c. 111, § 127A). In order to right the wrong and provide a remedy, the judge attempted a number of expedients, based essentially on exercise of his injunctive powers, to guide and compel performance by BHA. These failed. After much effort, a comprehensive consent decree was formulated. This also failed. The judge found upon lengthy trial that a major cause of the failures was lack of willing and competent leadership on the part of the five-member Board of BHA. Finally, as an ultimate recourse, after nearly five years of litigation, the judge took the step of ordering appointment of a "receiver" (to be appointed "as soon as possible") ² who would assume temporarily the functions of the Board (see G.L. c. 121B, § 5), subject to court order, this again with a view to securing, to the extent that competent management contending with financial stringency could do so, the minimal statutory rights upon which the action was grounded. We have to decide whether this remedial step certainly an exceptional one exceeded the bounds of legality or discretion. We hold that it did not, and affirm the judgment appealed from, with a modification to be mentioned.

I. THE BASIC RECORD

We give a summary account of this protracted case embodied in a very extensive record. In doing so we apply the rule that findings of fact made by the judge below are to be accepted by us unless clearly erroneous, Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), and we also take the view that more general appraisals by the judge, who presided in the case from the beginning, are entitled to respect although they are not binding on us. Cf. Commonwealth v. Jones, --- Mass. ---, --- - --- ^a, 377 N.E.2d 903 (1978). ³

A. Initiation of the Action in Boston Housing Court. The plaintiffs, duly certified in the proceedings as class representatives, commenced this action against BHA in the Housing Court of the City of Boston on February 7, 1975, basing their claims primarily on G.L. c. 111, § 127H, the general statute entitling residential tenants to relief against landlords for violations of the sanitary code. ⁴ Soon the plaintiffs joined in the action certain so-called "State defendants," including notably the Secretary of Communities and Development who, through the Department of Community Affairs (DCA), had supervisory responsibilities toward local housing authorities including BHA. (Also joined were the Commissioner The judge of the Housing Court found in his decision of March 28, 1975: "As indicated by the evidence in this case and by scores of criminal and civil complaints by its tenants against B.H.A. on the dockets of this Court which complaints were corroborated by the evidence in those cases concerning which I take judicial notice . . ., a number, unascertainable at this time but probably the great majority, of the residential units of buildings owned and operated by B.H.A. as well as the buildings themselves are not decent, nor are they safe . . . nor are they in compliance with the State Sanitary Code." The judge also found that BHA did not have sufficient funds to bring those properties up to standard.

of DCA and the Treasurer and Governor of the Commonwealth.)

The liability of BHA under § 127H as landlord was clear as a matter of law, and only the propriety and feasibility of particular remedies could remain in any doubt. Section 127H did not itself apply to the State defendants, but a claim had been asserted against them under a related § 127N which permitted joinder of, and held jointly liable with the landlord, any other person who had authority to decide whether to rehabilitate the property in question. The judge believed that the Secretary of Communities and Development could be held liable for the code violations through § 127N, and on that theory ordered the State defendants to take certain measures calculated to result in the provision of additional State funds to BHA for purposes of rehabilitation of developments in need.

B. First Appeal to this Court. 1. Dismissal of "State defendants." The State defendants not BHA appealed to this court. We agreed with the judge's findings about conditions in the BHA properties we said the situation was "appalling" (368 Mass. at 341, n.5, 331 N.E.2d 801) but we held, for the reasons to be read in our opinion, Perez v. Boston Hous. Auth., 368 Mass. 333, 336-341, 331 N.E.2d 801, decided on July 10, 1975 (appeal dismissed sub nom. Perez v. Bateman, 423 U.S. 1009, 96 S.Ct. 440, 46 L.Ed.2d 381 (1975)), that § 127N was inapplicable to the Secretary of Communities and Development; thus any directions in the judgment aimed at compelling the State to furnish funds to BHA were inapposite. The State defendants were dismissed from the action.

2. Remand to Boston Housing Court for remedial action. However, we acknowledged the "disturbing social implications" of our holding. Id. at 334, 331 N.E.2d 801. "The Commonwealth cannot be required to expend funds for rehabilitation of BHA property; yet hundreds, and probably thousands, of tenants are living in substandard units which the judge has characterized as 'not decent.' Without adequate funding, the alternatives appear equally unacceptable: either the tenants continue to live in conditions which are unlawful under the sanitary code, or the substandard units are to be withdrawn from use, with the accompanying probability of many persons left homeless." Id. at 341-342, 331 N.E.2d at 806. We described graphically the scope of the problem. ⁵

Nevertheless we thought there was still room for significant remedial action by the C. Search for Remedy in Boston Housing Court. To return, then, to the Boston Housing Court. The judge, in finding BHA liable under § 127H, had directed, by way of initiating a remedy "(a)s a first step in responding to especially intolerable conditions set out in the findings of fact" that BHA prepare plans, recommendations, and proposed court orders in certain "areas of immediate concern." These "areas" included the identification of vacant apartments and apartments which placed the health, welfare, or safety of tenants in "serious jeopardy," and preparation of plans for cleaning and securing unoccupied apartments, and removing broken glass from the several developments. BHA was also to prepare temporary or provisional plans on the issues of vandalism, crime, racial segregation, and extension of leased housing operations. It was "to consult with and request assistance from the Class and tenants groups which represent the Class as well as with other appropriate governmental and non-governmental agencies and organizations." Looking to longer-range rehabilitation was an order requiring BHA to hold a "mobilizing conference" to determine how best to use the resources of manpower and money in the Boston area to modernize BHA's decaying physical properties.

court. "Jurisdiction of the subject matter (violations of the sanitary code) resides in the Housing Court, of course, and that court's powers embrace such matters, relating to both the problem and the cure of [379 Mass. 708] the sanitary code violations, as vandalism, crime, alleged mismanagement, and the marshalling of tenant cooperation. Furthermore, the Housing Court judge has demonstrated, in his considerable efforts up to this point, both sympathetic understanding and competence directed toward the special problems of the BHA." Id. at 343, 331 N.E.2d at 807. "(F)urther proceedings," we said, "despite the lack of availability of State funds as decided in this case, may result in appropriate orders against BHA related to the sanitary code. See G.L. c. 111, § 127H. Moreover, additional proceedings may well offer guidance and precedent for future cases involving not only mandatory action by BHA, but also discretionary action by the legislative and executive branches." Id. at 343-344, 331 N.E.2d at 807. We concluded: "The case is remanded to the Housing Court for further proceedings as to the BHA in the discretion of the judge and consistent with this opinion." Id. at 344, 331 N.E.2d 807.

1. Appointment of "master." Such a conference was held in April, 1975 (while the appeal of the State defendants was pending). The "consensus" of those attending was that BHA would need expert assistance to accomplish any improvements. The consensus opinion appeared to be confirmed as BHA began to file plans with the court, as it had been ordered to do. A question arose what form the expert assistance should take. BHA in fact itself filed with the court a draft order regarding appointment of a "master"; the plaintiffs presented a draft order for appointment of a receiver. The events of April were referred to in the preambles to the important "Order of Reference" issued by the judge on May 22, 1975. He rejected at that time the more intrusive course of appointing a receiver, as suggested by the plaintiffs. Instead, he appointed Robert B. Whittlesey to serve as master. ⁶ The master was to gather...