428 Mass. 108 | Mass. | 1998
The Boston Housing Authority (BHA) appeals from a judgment of the Boston Housing Court in a summary
The facts on which the BHA based its case for eviction of the tenant are not in dispute. The tenant’s son, who was a member of her household, physically assaulted a BHA police officer while that officer and another BHA officer were trying to arrest one of the son’s friends (for possession of a gun, according to the testimony). Under her lease, the tenant agreed to “forbid any member of Resident’s household . . . from engaging in any criminal or illegal activity.” The BHA did not seek to evict the tenant for violation of that provision. There was no evidence that she had violated it.
As grounds for the eviction, the BHA relies on lease language permitting its termination if a member of the tenant’s household commits “[a]ny criminal or other activity which threatens the health or safety of . . . BHA employees.” The tenant’s son unquestionably committed a criminal act that threatened the health and safety of the BHA police officer whom he attacked. If the lease alone controlled our decision, the BHA would be entitled to possession of the premises. The terms of the lease are not, however, the sole consideration.
The BHA is subject to the statute governing the termination of public housing tenancies, G. L. c. 121B, § 32. In Spence v. Gormley, supra, involving evictions sought because of firebombings of BHA apartments by tenants’ sons (id. at 259, 260), we concluded that § 32 provides “a limited protection against termination when special circumstances . . . indicate that the tenant could not have foreseen the violence or taken steps to prevent it.” Id. at 261. Section 32, then (id. at 263) and now, provides that a housing authority may terminate a tenancy only for “cause.” Id. We concluded in Spence v. Gormley that “[wjhen the wrongdoer is a household member, a fair inference exists that the tenant is aware of potential problems, and able to exercise some influence or otherwise prevent violent and destructive conduct on the premises.” Id. at 265. We continued, noting that this inference may not hold true in every case, and, if it were not true in a specific case, there would be a question
Although the Legislature has amended § 32 several times since our 1982 opinion in Spence v. Gormley, the word “cause” and its context have not changed (“The tenancy of a tenant of a housing authority shall not be terminated without cause . . .”). There is no indication that the Legislature intended any amendment of § 32 to change the principles announced in Spence v. Gormley. Reenactment of statutory language following a judicial interpretation of it presumes legislative acceptance of that interpretation. See Barlow v. Wareham, 401 Mass. 408, 411 (1988); Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Taxation, 363 Mass. 685, 691 (1973); Leal v. Contributory Retirement Appeal Bd., 42 Mass. App. Ct. 330, 333 (1997).
The question then is whether, pursuant to the principles of Spence v. Gormley, the tenant has shown that she could not have foreseen and prevented her son’s violence. Some testimony tended to show that the tenant had no reason to foresee that her son would act violently. But the judge made no findings of fact bearing on the foreseeability question. On the question whether
We vacate the judgment and remand the case for findings of fact and a ruling on whether the tenant has proved special circumstances that justify rejection of the BHA’s attempt to evict her. The judge in his discretion may authorize a further evidentiary hearing.
So ordered.
The sixth paragraph, which contains the cause requirement, was amended by St. 1995, c. 179, §§ 5 & 6, which reenacted the “cause” language verbatim.
Before 1995, such conduct would have permitted only a request to waive an agency hearing. See G. L. c. 121B, § 32 (1994 ed.).
The BHA makes no claim that Federal law preempts the cause requirement of § 32.