Perez v. Boston Housing Authority

• Decision Date: 10 July 1975
• Citation: 331 N.E.2d 801,368 Mass. 333
• Parties: Armando PEREZ et al. v. BOSTON HOUSING AUTHORITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 801

331 N.E.2d 801

368 Mass. 333

Armando PEREZ et al.

v. BOSTON HOUSING AUTHORITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 9, 1975.

Decided July 10, 1975.

Terence P. O'Malley, Asst. Atty. Gen., for Com. of Community Affairs and others.

Gershon M. Ratner (Bruce E. Mohl, Roxbury, and James E. Wexler, East Boston, with him), for plaintiffs.

Kevin P. Feeley, Arlington (Brian P. Shillue, Boston, with him), for Boston Housing Authority.

Howard E. Cohen, Boston, for Cambridge Housing Authority, amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

In this case we hold, as clearly required by the applicable law, that the Commonwealth wealth has no duty to provide funds for the rehabilitation of certain property of the Boston Housing Authority (BHA). However, we emphasize the disturbing social implications of this holding (infra, part 2).

Certain appellants, namely the Commissioner of the Department of Community Affairs, the Secretary of Communities and Development, the Treasurer of the Commonwealth, and the Governor of the Commonwealth, appeal from a judgment (the 'final decree') entered by a judge of the Housing Court of the City of Boston (Housing Court). These appellants are hereinafter referred to as the State defendants. We granted direct appellate review on application of all parties. We reverse the final decree and, for the reasons set forth in this opinion, remand the case for further proceedings in the discretion of the judge of the Housing Court.

Various tenants of the BHA filed a complaint in the Housing Court pursuant to G.L. c. 111, § 127H, to enforce the State sanitary code (see G.L. c. 111, § 127A) in public housing projects owned and operated by the BHA. The tenants requested the judge of the Housing Court to 'enjoin . . . (the BHA) from failing to correct' defective conditions in the premises in which they and a class of approximately 40,000 persons live.

The tenants subsequently moved to join the State defendants. As their grounds for relief, the tenants alleged that since these State officials had authority under various provisions of G.L. c. 121B to decide whether to rehabilitate the projects of the BHA, they were subject to liability under G.L. c. 111, § 127N, for the alleged sanitary code violations by the BHA. ¹ The tenants also alleged that, for financial reasons, the BHA was unable by itself to rectify the sanitary code violations. Accordingly, the Housing Court was asked first to enjoin the State defendants from committing any of the remaining borrowing authority of either the State or the BHA for the development of low income housing until the preparation and State approval of rehabilitation plans for housing projects owned and operated by the BHA. Second, the Housing Court was requested to order the State defendants to provide, from these State funds remaining to be borrowed, the moneys necessary for rehabilitating the BHA housing once such plans were prepared and approved.

A hearing on the requests for preliminary injunctive relief was held before the judge of the Housing Court. On the basis of the evidence presented at that hearing and collected by the judge in the course of visits to certain projects, the judge made findings concerning the existence and extent of sanitary code violations, vandalism, crime, and racial segregation in BHA projects. The judge also found that the BHA did not have the financial resources to correct the sanitary code violations.

The judge ruled that under G.L. c. 111, § 127N, the State defendants were liable for the sanitary code violations and would be required to provide the funding necessary for rectification. He then entered the final decree, which incorporated in its entirety his 'Findings, Rulings, Opinion and Orders.' The State defendants were enjoined from committing, with limited exceptions, approximately $105,000,000 of the borrowing authority not yet committed under G.L. c. 121B, §§ 26A, 34, 41, for the development of low income housing on a Statewide basis. The decree, with exceptions not here material, froze the uncommitted amount of borrowing authority for use solely to rehabilitate the existing projects of the BHA. ² The State defendants then filed this appeal.

1. The State defendants do not dispute that the plaintiffs have satisfied, at least with respect to the BHA, all the requirements for a cause of action under G.L. c. 111, § 127H. Included in this area of apparent agreement is the assertion that remedies for violations of the sanitary code are available to tenants in public housing accommodations as well as to those in private dwellings. See West Broadway Task Force, Inc. v. Commissioner of the Dept. of Community Affairs, --- Mass. ---, --- - --- ^a, 297 N.E.2d 505 (1973).

Additionally, from representations made by counsel in oral argument before this court, it is clear that the plaintiffs do not seriously contend that any obligation can be found on the part of the Governor or the State Treasurer as to the issues now before us because of the limited statutory involvement of these two officials with respect to low income housing. See G.L. c. 121B, § 26A. It is also established that the Commissioner of the Department of Community Affairs is not a proper party defendant because that position has been abolished by St.1975, c. 163, effective April 30, 1975. The supervision and control of the Department of Community Affairs is now vested in the Secretary of Communities and Development (the Secretary).

Thus, the Secretary is the sole State defendant whose liability need be considered. The issue is whether the Secretary is liable for violations of the sanitary code in buildings controlled by the BHA. Essentially, of course, the issue is whether the Commonwealth has such liability. We hold that it does not. ³

It is true that the Commonwealth, through the Secretary, has certain supervisory authority over local housing authorities and is empowered to oversee most phases of the operations of local housing authorities. To that end the Secretary is given various powers to approve or disapprove the activities of these authorities together with rule making power and power to demand reports and other information. G.L. c. 121B, §§ 1, 11, 29, 30--32, 34, 35, 37. G.L. c. 23B, §§ 1, 3. See WEST BROADWAY TASK FORCE, INC. V. COMMISSIONER OF THE DEPT. OF COMMUNITY AFFAIRS, --- MASS. AT --- , 297 N.E.2D 505 (1973)^B. Nevertheless, the tenants primarily rely, as did the judge below in his rulings, on the provisions of G.L. c. 111, § 127N, to establish the Commonwealth's liability. Indeed, that appears to us to be the only statutory source from which the tenants can begin to draw a relevant argument in support of their position.

General Laws c. 111, § 127N, inserted by St.1974, c. 681, states, in pertinent part, that a tenant petitioning a court of competent jurisdiction to enforce the sanitary code may join as a party defendant not only the owner of the premises but also 'any individual, trust or corporation, partnership, association, or other person who, acting alone or with another, has the authority to decide whether to rehabilitate, or sell or otherwise dispose of the premises, with or without record title or recorded interest.' If the owner is unable for financial reasons to provide effective relief, 'The owner and any person so joined shall be jointly and severally liable for taking any action or paying any damages ordered by the court.'

It is plain that the Secretary cannot be held responsible under this statute unless the Secretary (1) is an 'individual, trust or corporation, partnership, association, or other person,' within the meaning of the statute, and (2) has the authority to decide whether to rehabilitate or sell or otherwise dispose of the premises. We hold that the Legislature did not intend to include the Secretary, or the Commonwealth, or any of its departments or agencies, among the entities described in § 127N as an 'individual, trust or corporation, partnership, association, or other person.'

On this issue, the State defendants' arguments, which are convincing, are that the judicial imposition of liability on the Secretary or any other representative of the Commonwealth is contradicted both by the ordinary meaning of the language used in § 127N, and by the legislative intent otherwise demonstrated.

The words employed by the Legislature are plainly inappropriate to identify the State or any of its agencies. By contrast, the State defendants point out, and we think persuasively, that when the Legislature did in fact determine to apply public health regulations, enacted pursuant to G.L. c. 111, to State agencies as well as other entities, it expanded the coverage from '(a)ny municipality, corporation or person' (§ 142A), and 'any person, corporation, or political subdivision' (§ 142B), to include '(a)ll departments, agencies, commissions, authorities and political subdivisions' (§ 142E). See Boston v. Massachusetts Port Authy., --- Mass. ---, --- ^c, 308 N.E.2d 488 (1974).

Further, in construing the language employed, we recognize that '(i)t is a widely accepted rule of statutory construction that general words in a statute such as 'persons' will not ordinarily be construed to include the State or political subdivisions thereof.' Hansen v. Commonwealth, 344 Mass. 214, 219, 181 N.E.2d 843, 847 (1962). That the Secretary is an individual does not obscure the fact that he is a party to this suit only in his official capacity and that the essence of the judge's order in this case would impose liability on the Commonwealth through the Secretary and require the expenditure of funds of the Commonwealth.

The legislative intent as inferred from other sources is consistent with the plain language of c. 111, § 127N. No provision of G.L. c. 121B setting forth various governmental responsibilities with...