Spence v. Reeder
| Decision Date | 02 February 1981 |
| Citation | 382 Mass. 398,416 N.E.2d 914 |
| Parties | Lewis H. SPENCE, Receiver, v. George REEDER et al. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur L. Johnson, Jamaica Plain, for George Reeder and another.
S. Stephen Rosenfeld, Asst. Atty. Gen. (Margot Botsford, Asst. Atty. Gen., with him), for Lewis H. Spence, receiver.
Edmund P. Daley, for Armando Perez and others, amici curiae.
Gerard J. Clark, Boston, for Boston Public Housing Tenants Policy Council, Inc., amicus curiae.
Robert M. Cohen, Boston, on brief, for Bromley Heath Tenant Management Corp., amicus curiae.
Richard C. Allen, Boston, Susan G. Anderson, Mass. Legal Assistance, New Bedford, Michael J. Ciota, Fitchburg, Dean Amrose, Marc Lauritsen, Worcester, James Bisceglia, Holyoke, James S. Singer, Boston, James F. Donnelly, Springfield, Cushing Giesey, Framingham, Julia K. Johnson and Nancy King, Framingham, pro se on brief amici curiae.
Francis X. Bellotti, Atty. Gen., and Anthony P. Sager, Asst. Atty. Gen., on brief for Secretary of Communities and Development, amicus curiae.
Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.
By this action, the Boston Housing Authority (BHA), acting through its court-appointed receiver, sought to recover possession of residential premises in the Charlestown-Bunker Hill development leased under a written lease to the defendants (Reeders). This eviction proceeding was commenced as an adjunct to the long-continuing Perez litigation concerning housing conditions in BHA developments. 2 The basic object of the Perez litigation, a class action, is to afford all similarly situated BHA tenants their statutory right to decent, safe, and sanitary housing. We have noted previously the deplorable inadequacy of BHA premises, affecting a substantial percentage of the residents of Boston. See Perez v. Boston Hous. Auth., 368 Mass. 333, 341-342, 331 N.E.2d 801, appeal dismissed sub nom. Perez v. Bateman, 423 U.S. 1009, 96 S.Ct. 440, 46 L.Ed.2d 381 (1975) (Perez I ). We have also recited extensively the persistent failure of the BHA, prior to the receivership, both to address and to correct serious deficiencies in its operation and to remedy the appalling condition of many of its units. Perez v. Boston Hous. Auth., --- Mass. ---, --- - ---, a 400 N.E.2d 1231 (1980) (Perez II ).
Following the appointment of the receiver in February, 1980, the subject of safety in BHA developments became a focus of attention. On May 29, 1980, the BHA through its receiver, the plaintiff class, and the plaintiff intervener Boston Public Housing Tenants Policy Council, Inc. (Tenants Policy Council), moved for the establishment of an emergency eviction and injunction procedure by which the Superior Court would authorize expedited eviction proceedings in situations where a tenant or a household member committed one or more of certain serious crimes. In circumstances that will be described more fully presently, the judge approved that request on June 3, 1980. The new emergency eviction procedure was first applied to the Reeders, whose adult son, a resident of their household, had allegedly slashed the throat of a female tenant in the Charlestown development in early May, 1980. The Reeders raised various challenges to the emergency eviction procedure and to its application to them. The judge rejected those challenges, a jury found for the BHA on August 7, 1980, and a judgment of possession was entered in the BHA's favor against the Reeders.
On the Reeders' expedited appeal, which we transferred here on the joint application of the BHA and the Reeders, we conclude that the judgment must be reversed because the interests of the Reeders were not fairly and adequately represented in the course of the adoption of the emergency eviction procedure. Because of the wide interest in the scope of the authority of the court in the receivership proceeding, in the appropriate treatment of various matters in this class action, and in the propriety of the adoption of an emergency eviction procedure, we discuss various issues argued by the parties that need not be decided in order to dispose of the Reeders' appeal itself. These subjects are of importance in determining the effect, if any, of the order adopting the emergency eviction procedure (and the effect of any subsequent order of the same general character).
In adopting the emergency eviction procedure, the judge made certain findings based on three sources: an affidavit filed by the receiver in support of the parties' joint motion, evidence concerning safety and security received in the course of many hearings in the Perez proceeding, and information provided by the receiver in many meetings with the judge. A hearing was held on the day the joint motion was filed. It does not appear that anyone attended or was represented at the hearing other than the parties who favored the allowance of the joint motion. Nor does it appear that attention was paid to whether the interests of class members who might have opposed the motion should have been represented in the course of considering whether to enter the order establishing the emergency eviction procedure. 3
The judge made findings as to the condition of the BHA and BHA housing which we summarize. A state of emergency relative to safety and security existed in many BHA developments. The emergency was "worsened" by acts of violence by certain tenants against other tenants and against BHA employees and property and by other illegal conduct. Many acts of violence appeared to be racially motivated. These illegal acts and illegal conduct resulted in significant part from failures of the BHA to institute proper management procedures. Ordinary and usual rules governing eviction from BHA developments "do not contemplate the current almost total absence of safety and security in the BHA's developments and are not designed to cope with such emergency conditions." The relief requested in the joint motion was critical to protect the rights and interests of all BHA tenants and critical to the success of the receivership. Absent the prescribed relief, tenants and BHA employees were likely to suffer substantial and unnecessary physical and mental harm and many tenants would be forced to vacate their apartments for reasons of personal safety, increasing an already very high vacancy rate and leading to vandalism of abandoned apartments.
Based on these findings, the judge ordered the adoption of the emergency eviction procedure. In support of that order, he ruled that the emergency eviction procedure was consistent with Federal law and Department of Housing and Urban Development (HUD) regulations, with the regulations of the Commonwealth's Executive Office of Communities and Development (EOCD), certain provisions of which were waived by EOCD, and with the law of the Commonwealth. The judge made no specific findings in justification for his order's overriding of statutory requirements. He did not discuss alternative procedures or the feasibility of some other action directed toward safety in and around BHA developments. 4
Under the terms of the order, the emergency eviction procedure was to apply to cases in which the BHA alleged that a tenant or a member of a tenant's household, or both, committed or threatened to commit certain serious crimes of violence in or nearby a BHA development or committed certain drug offenses in a BHA development. 5 He directed that the BHA submit an ex parte application to invoke the emergency eviction procedure as to a particular tenant, with notice to the plaintiff class and to the Tenants Policy Council that they could appear and be heard. Use of the emergency eviction procedure would be authorized if the court "finds that there is sufficient cause to believe that use of the Procedure is warranted." A tenant's lease could be terminated on forty-eight hours' written notice. That notice would state the specific reasons for the termination, although the BHA could assert other reasons at any subsequent hearing. 6 The BHA was relieved from offering to hold and from holding a private conference or grievance hearing concerning the termination and eviction. 7
At the end of the forty-eight hours' notice period, the BHA was authorized to file a summons and complaint for summary process "as a limited intervention in Perez v. BHA." The tenant was required to file an answer within forty-eight hours after service of the summons. 8 Discovery was available only by order of the court, but the judge indicated that he would allow reasonable and necessary discovery. 9 The trial of the eviction action was to be set no later than forty-eight hours after the time to answer. 10
The judge ordered that the emergency eviction procedure would be in effect for 120 days and that all contrary BHA regulations and lease provisions would be suspended during that time. The period of the emergency eviction procedure was extended on October 1, 1980, to the end of November. We are advised that the BHA has determined not to seek a further extension of the procedure until it has received the decision in this case.
On July 7, 1980, the BHA filed and the judge approved an application to invoke the emergency eviction procedure against the Reeders. The application set forth in detail the circumstances of an armed assault with a knife by the Reeders' eighteen-year old son on a twenty-one year old BHA tenant in her apartment in the Charlestown development on or about May 2, 1980. The application also set forth various threats against the woman if she persisted in pressing charges against the Reeders' son. Although the son had been in custody since his arrest on May 3, 1980, a companion of the son, also charged in connection with the incident, had not been in custody. On July 11 a complaint was filed and a summons issued. Counsel for the Reeders expeditiously and conscientiously filed a...
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