Police Com'r of Boston v. Lewis

• Decision Date: 15 November 1976
• Citation: 371 Mass. 332,357 N.E.2d 305
• Parties: POLICE COMMISSIONER OF BOSTON v. Annie Mae LEWIS et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 305

357 N.E.2d 305

371 Mass. 332

POLICE COMMISSIONER OF BOSTON

v. Annie Mae LEWIS et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1976.

Decided nov. 15, 1976.

Nicholas Foundas, Boston (Herbert P. Gleason, Corp. Counsel, Boston, with him), for the Police Commissioner of Boston.

James H. Wexler, Boston (William C. Osborn, Boston, with him), for Annie Mae Lewis and others.

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

HENNESSEY, Chief Justice.

On September 3, 1975, a judge of the Housing Court of the City of Boston issued a preliminary injunction requiring the police commissioner of the city of Boston 'to provide 24-hour security protection to the persons and residences of named Plaintiffs and of the class.' ² The commissioner, plaintiff in the case now before us, filed a petition in the Supreme Judicial Court for relief from the interlocutory order of the Housing Court. See G.L. c. 231, § 118. A single justice of this court reserved and reported the case without decision for determination by the full court.

The plaintiff presents two arguments to this court. First, he contends that the Housing Court lacks subject matter jurisdiction over this case in view of the jurisdictional grant set forth in G.L. c. 185A, § 3, and, therefore, the plaintiff's motion to dismiss should have been granted by the judge of the Housing Court. Second, the plaintiff maintains that the judge abused his discretion by issuing the preliminary injunction of September 3, 1975. We do not address this second argument, for we hold that the Housing Court does not have jurisdiction over this matter. Nevertheless, as will be seen, we do not order that the injunction shall be dissolved. Rather, we remand the case to the single justice for a determination on the merits in the county court or, after transfer in the discretion of the single justice, in the Superior Court.

The facts which led to this action are as follows. On August 26, 1975, black tenants of two public housing projects in East Boston, defendants in the case now before us, commenced a class action in the Housing Court naming as defendants, inter alia, the administrator of the Boston Housing Authority, the plaintiff, the Boston Housing Authority, and the Boston police department. The complaint seeks injunctive and declaratory relief and damages 'to secure the protection of black public housing tenants in East Boston from racial harassment and threats and injury to their lives and property.' The tenants allege that the plaintiff and other officials failed to protect residents from mob attacks and failed to arrest white persons who were throwing rocks at the residents' homes, and that such dereliction of duty constitutes a violation of State and Federal statutes and the equal protection clause of the Fourteenth Amendment to the United States Constitution. ³

A hearing was held on August 26, 1975, on the tenants' motion for a temporary restraining order. On the basis of the complaint and three accompanying affidavits, the judge issued a temporary restraining order which, in part, required the plaintiff to provide twenty-four hour police protection, as defined in the order, for the residents' apartments.

On August 28 and 29, 1975, a hearing was held in the Housing Court on the tenants' application for a preliminary injunction. The transcript of this hearing Including the testimony of seven witnesses for the tenants and three police officers for the plaintiff, as well as the findings and rulings of the judge are part of the record now before us on appeal.

The testimony of the tenants' witnesses indicated that black families in two adjoining housing projects in East Boston have been subjected to harassment, threats and attacks by white youths. Although there was testimony about scattered incidents over a period of time, the main thrust of the testimony concerned events that occurred on August 25 and 26, 1975. The sequence of events, during these two days, as culled from the testimony at the hearing, may be summarized as follows.

During the early evening of August 25, bands of white youths carrying rocks, bottles and baseball bats were seen roaming around the two housing projects. Some of these youths broke windows at the homes of black families and attacked a group of whites and blacks who were attempting to assist a black tenant. Several in the group were injured by flying rocks. One victim testified that, as the stoning continued, the onlookers, including Boston police officers, clapped and chanted.

During these incidents, despite calls for help by black residents, the police appeared to take little action to quell the disturbances. An attempt was made by the police in the early evening to disperse the groups and to confiscate the weapons, but the situation did not improve. Two white youths were arrested. According to the rulings of the judge, the small number of policemen and the limited response by those present was 'totally unreasonable' in view of the extreme violence, harassment and vandalism that was occurring.

During the early hours of August 26, one of the named tenants, Annie Mae Lewis, and several of her friends who had come to her apartment to aid her were ordered by police to disperse. Several witnesses testified that none of these individuals was throwing rocks or sticks, although a police officer testified otherwise. On refusing to disperse, six persons at the Lewis apartment were arrested for disorderly conduct, apparently in an effort by the police to remove them as a target of the disorders. As the arrests were taking place, surrounding crowds of whites yelled racial epithets.

After the hearing, the judge found that the police had not discharged their responsibility to maintain order and that their failure to take reasonable measures to protect black tenants and other persons constituted a denial of equal protection of the laws. The judge entered an order, see note 2 supra, requiring the plaintiff to provide twenty-four hour security protection to the persons and residences of the named tenants and of the class until such time as the need no longer exists.

Subsequently, the plaintiff's motion for a stay of the preliminary injunction was denied by the judge. Thereafter, the plaintiff filed a petition under G.L. c. 231, § 118, for relief from the interlocutory order of the Housing Court. Following a hearing before a single justice, the case was reserved and reported to this court.

Initially, we note that, despite the defendants' contention, this case is properly before us. In reaching this conclusion, we need not decide if Mass.R.A.P. 6(a), 365 Mass. 848 (1974), applies to a petition brought under G.L. c. 231, § 118, or if, as argued by the plaintiff, Rule 6(a) governs only an appeal from a final judgment (opposed to an interlocutory order), see Foreign Auto Import, Inc. v. Renault Northeast, Inc., --- Mass. ---, --- - ---, ^a 326 N.E.2d 888 (1975) for even if assume that Rule 6(a) is applicable, we believe that the plaintiff has complied with that rule.

We now turn to the plaintiff's first contention that his motion to dismiss should have been granted on the grounds that the Housing Court lacks subject matter jurisdiction over this matter. We conclude that the plaintiff's position is supported by a reading of the statute which established the Housing Court of the City of Boston (G.L. c. 185A) and is consistent with the legislative history relating to the creation of that court. Accordingly, we decide that the issuance of a preliminary injunction in this case went beyond the statutory powers granted to the Housing Court under G.L. c. 185A, § 3.

As we noted in West Broadway Task Force, Inc. v. Commissioner of Dep't of Community Affairs, 363 Mass. 745, 753, 297 N.E.2d 505 (1973), the Housing Court of the City of Boston was established by statute, G.L. c. 185A, effective January 1, 1972, so as to provide a specialized forum to handle all criminal and civil matters regarding housing that arise in Boston. Cf. Perez v. Boston Housing Authority, --- Mass. ---, --- (1975), ^b 331 N.E.2d 801 (1975). It is a court of limited jurisdiction, the scope of which is defined in G.L. c. 185A, § 3, set forth below. ⁴ In resolving the jurisdictional question in the present case, we must determine if the causes of action alleged by the defendants are based on 'any other general or special law, ordinance, rule or regulation' that is 'concerned with the health, safety or welfare of any occupant of any place used, or intended for use, as a place of human habitation.' See note 4 supra. The defendants argue that the plaintiff has enforced the law in a discriminatory manner and, by failing to maintain order, has deprived tenants of their right to safe and secure housing in violation of State and Federal laws (see note 3 supra), and that these laws are concerned with the health, safety or welfare of tenants. We believe that such a broad interpretation would be contrary to the legislative intent to grant only limited jurisdiction to the Housing Court, for if we were to adopt the defendants' position, the power of that court would extend to every matter affecting the health, safety or welfare of tenants in Boston. In view of our conclusions and reasoning we do not reach the issue whether it has been shown that this case arose under 'any other general or special law, ordinance, rule or regulation.' See note 3 supra for a summary of the State and Federal laws on which the defendants rely.

An examination of the legislative history of G.L. c. 185A reveals that the General Court did not intend to create a court to handle all problems affecting residents of Boston, but rather its objective was to establish a separate, specialized court with expertise in the area of housing. Under c. 70 of the Resolves of 1966, the Legislature directed that a special commission be formed to investigate 'the laws, codes, and regulations governing...