Spence v. Gormley

• Decision Date: 26 August 1982
• Citation: 439 N.E.2d 741,387 Mass. 258
• Parties: Lewis H. SPENCE, receiver, v. Frances GORMLEY (and a consolidated case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 741

439 N.E.2d 741

387 Mass. 258

Lewis H. SPENCE, receiver, v. Frances GORMLEY (and a consolidated case ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 4, 1982.

Decided Aug. 26, 1982.

Jane D. Kaplan, Boston (Diana J. Rubin, Boston, with her), for Frances Gormley.

R. J. Cinquegrana, Boston, for Beatrice Bunting.

Richard Friedman, Boston (Richard M. Bluestein, Boston, with him), for Lewis H. Spence.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

In each of the cases before us, the Boston Housing Court entered a judgment evicting a tenant of the Boston Housing Authority (BHA) on the basis of violent acts by the tenant's son, a member of the household at the time of the alleged violence. We affirm the judgments granting possession to the BHA.

Similar eviction procedures were followed in the two cases. The BHA first held a conference with the tenant to discuss the alleged conduct of her son. The conference was followed by a grievance hearing before a BHA panel, which voted to terminate the tenancy. ² The BHA gave the tenant notice to quit, and initiated proceedings in the Housing Court for summary eviction. Each trial resulted in judgment for the BHA. The tenants appealed, and we granted the BHA's request for direct appellate review.

We summarize the findings on which each judgment was based. ³ In the first case, the BHA sought to evict Frances Gormley from the Faneuil development in Brighton on the basis of two incidents involving her son Mark McDonough. The judge found that on May 11, 1980, Mark participated in firebombing the apartment of a black tenant at Faneuil. He also found that on July 17, 1980, Mark assaulted a black BHA employee. The assault was racially motivated and "totally unprovoked." Mark was sixteen at the time of these incidents, and was living in his mother's household at Faneuil. The judge made no findings as to whether Mrs. Gormley knew or should have known of her son's propensity for violence, or whether she was able to control or prevent his actions.

Mrs. Gormley's household now consists of herself, her husband, and her younger son Scott. Mark is serving the second year of a six-to-ten year prison sentence for acts unrelated to the firebombing and assault at Faneuil. Mrs. Gormley has stated her intention to exclude Mark from her household after his release from prison. Mark, however, has stated that he intends to return to his mother's home.

In the second case, the BHA sought to evict Beatrice Bunting from the West Broadway development in Boston on the basis of a firebombing by her son William Bunting. The judge found that on November 7, 1980, William participated in firebombing the apartment of a tenant at Broadway, and that the incident was racially motivated. William was eighteen when the firebombing occurred. Between the ages of eleven and eighteen he had been in the custody of the Division of Youth Services (DYS), visiting his mother's home only once a month. At the time of the firebombing, however, William had been released from DYS custody, and was living, at least sporadically, in his mother's household at West Broadway. The judge found that Mrs. Bunting knew or should have known of her son's violent tendencies, but had no ability to control his actions. ⁴ Mrs. Bunting's household now consists of herself, William, and three other children.

Apart from questions of sufficiency of evidence, the two tenants' arguments are essentially the same. They argue, first, that their leases do not authorize termination on the basis of acts by anyone other than the tenants named in the lease. Alternatively, the tenants argue that principles of due process prevent eviction of tenants who are not "personally culpable" of wrongdoing. They suggest that an element of scienter, and an ability to control the wrongdoer's conduct, are constitutional prerequisites of eviction on the basis of another's acts. Finally, the tenants argue that the events justifying eviction must, as a matter of procedural due process, be proved by clear and convincing evidence.

We decide, first, that the leases permit termination on the basis of acts by household members. We then depart from the path followed by the parties, and consider the statute governing termination of public housing tenancies, G.L. c. 121B, § 32. We read § 32 to provide a limited protection against termination when special circumstances, not present in these cases, indicate that the tenant could not have foreseen the violence or taken steps to prevent it. We then conclude that, as least within the limits set by § 32, eviction of tenants from public housing on the basis of violent acts by household member is consistent with due process. Finally, we determine that the BHA was not required to prove by clear and convincing evidence that members of the tenants' household committed the acts charged, that the evidence in each case was sufficient to support eviction, and that the judgments granting possession to the BHA should be affirmed.

1. Lease Provisions.

Mrs. Gormley and Mrs. Bunting signed identical lease forms. Each signed as "tenant," and no other "tenants" signed or were named. The lease form was the product of collective bargaining between the BHA and the Boston Public Housing Tenants' Policy Council, Inc.

The leases identify ten permissible grounds for termination of the tenancy by the BHA, three of which bear upon the present cases. "This lease may be terminated by the [BHA] ... for no reason other than ... 2. Reasonable likelihood of serious repeated interference with the rights of other tenants.... 5. Creation or maintenance of a serious threat to the health or safety of other tenants.... 10. In the event of a violation by the Tenant of any of the terms, conditions or covenants of this lease." In addition, the lease specifies "tenant obligations," including an agreement to "[l]ive in a peaceful way, respecting the rights of his neighbors to privacy and quiet."

Firebombings of other BHA apartments are certainly within the scope of conduct for which eviction is authorized. Such extremely violent acts constitute a threat to the health and safety of tenants, and raise a likelihood of repeated interference with tenants' rights. A violent, unprovoked assault against a BHA employee also affects the rights of project residents and, particularly when preceded by a firebombing, suggests a likelihood that more violence will ensue.

The more important question is whether the termination provisions cover conduct by household members other than the named tenant who has signed the lease. We believe they do. The language of the termination provisions speaks only of the facts that justify eviction--a threat to health and safety or a likelihood of interference with rights. This wording suggests that if these problems arise from the tenancy, eviction is warranted, whether the wrongdoer is the tenant or a member of her household. Moreover, an interpretation of the lease to cover the conduct of all household members is consistent with the manifest purpose of the termination provisions, to promote safety and order in the housing projects. This objective is shared alike by the BHA and its tenants, and has fallen far short of successful accomplishment. ⁵

We stated in Spence v. Reeder, --- Mass. ---, --- - ---, Mass. Adv. Sh. (1981) 229, 252-253, 416 N.E.2d 914, that at least when a tenant knows or has reason to know of a household member's violent tendencies "[t]he notion that interference with or threats to the rights of other tenants justifying eviction can only come from a signatory of the lease (or his or her minor children) is itself illogical. Surely, a public housing authority cannot be left helpless to rectify a serious threat to the safety of other tenants simply because the signatory of the lease happens not to be the source of the threat." Although we were concerned in Spence, not with construction of a lease, but with general questions of fairness, our comments there are relevant to the likely intent of parties seeking to provide rationally for a means to curtail rampant violence in the housing projects.

2. Statutory Requirement of Cause.

The tenants argue that even if the BHA was entitled under the terms of the lease to terminate their tenancies on the basis of their sons' conduct, it could not do so without proof that they were personally responsible for their sons' violent acts. Although the tenants have based their claims primarily on the requirements of the Federal Constitution, we consider first the statutory provisions governing termination of public housing tenancies. We conclude that these provisions permit the BHA to terminate a tenant's lease on the basis of violent conduct by a household member, unless the tenant can point to special circumstances indicating that she could not foresee or prevent the violence.

General Laws c. 121B, § 32, provides that a housing authority cannot terminate a tenancy without "cause." "Cause," as a limit on administrative discretion, imposes requirements of rationality and basic fairness on agency action. It is a general term, and must take on much of its meaning from the context in which it is used. See Driscoll v. Harrison, --- Mass.App. ---, ---, Mass. App. Ct. Adv. Sh. (1981) 434, 438, 417 N.E.2d 26. It does not imply that agency action must be predicated on the fault or undesirable conduct of the person affected; cause may arise, for example, from external economic constraints upon the agency. See, e.g., Dooling v. Fire Comm'r of Malden, 309 Mass. 156, 162, 34 N.E.2d 635 (1941). For reasons cited in our discussion of the lease clauses, we believe that violent acts by household members can constitute "cause" to terminate a tenancy. ⁶

At the same time, two circumstances lead us to conclude that, when termination is based on prohibited conduct by a tenant's household member, "cause" requires that there be some...