435 Mass. 364 | Mass. | 2001
Lead Opinion
Elba Olan had been a tenant for about three years at the Presidential Heights public housing project, a federally subsidized public housing project in New Bedford owned and operated by the New Bedford Housing Authority. On July 14, 1997, the housing authority commenced an action under G. L. c. 139, § 19, seeking cancellation of Olan’s lease, a declaration that her lease was void, orders that Olan and her family vacate and surrender forthwith their apartment, and a speedy trial. Its complaint alleged that Olan and her family had used force or violence against New Bedford police officers who were lawfully at her apartment on July 10.
Olan appealed from the judgment to the Appeals Court, claiming that (1) she was denied her right to a jury trial under art. 12 and art. 15 of the Massachusetts Declaration of Rights; (2) the housing authority failed to show that the police officers were lawfully on the property; (3) the judge erred in ordering her eviction without evidence that she had received the prior written notice required under Federal and State law; and (4) the judge abused his discretion by not affording her the opportunity to conduct pretrial discovery. The Appeals Court construed G. L. c. 139, § ■ 19,* *
1. Background. On July 10, 1997, at approximately 11 p.m., New Bedford police Officers Jeanine Pettiford and Richard Nat-
New Bedford police Officer Elvin Ramos, who was a tenant at the housing project, saw the collision from his front porch. He was preparing to go on duty and was in uniform. Ramos chased the driver of the truck, never letting him out of his sight until the driver entered Olan’s apartment through the open door at the rear entrance. Ramos followed him into the apartment through the open doorway. He went to the second floor where there were three bedrooms, one of which was locked.
Olan came from her second floor bedroom to see what was happening. She was joined by her two daughters, who came from outdoors. They converged on Ramos. Olan repeatedly screamed at him in Spanish, asking, “What’s happening?” Detective Jose
Olan became increasingly hysterical as this was happening, and her daughters became increasingly hostile toward the officers. Pettiford tried to calm Olan, but Olan struck her. Silva also tried to calm Olan, but she struck him as well. They placed Olan under arrest. As Pettiford was escorting Olan downstairs, she was pushed from behind by Olan’s younger daughter, send
Momentum continued to build. Olan’s older son arrived with some friends. They accosted the officers with hostile language and threats. Some threw stones at the officers. Pettiford repelled them with mace. Meanwhile, a crowd estimated at seventy-five to one hundred people gathered outside the apartment and joined the confrontation, yelling and shouting, and throwing stones at the officers. State police were called to assist the city police. In all, fifteen to sixteen officers responded to what the judge found was a near riot situation.
2. Jury trial. The parties have analyzed G. L. c. 139, § 19, as authorizing a lessor or owner of real estate to bring an action to abate a public, or common, nuisance and the Appeals Court based its decision on the construction of the statute given by the parties. We do not agree that § 19 creates such a remedy. We construe the statute as creating a private remedy in the nature of an eviction.
The Legislature may provide for the elimination of common nuisances by both criminal and equitable proceedings. See Commonwealth v. United Food Corp., 374 Mass. 765, 779 (1978). The former punishes the offender for the crime of maintaining a nuisance, while the latter, by way of an action to abate a common nuisance, looks only to the property that, in the use made of it, constitutes the nuisance. See Carleton v. Rugg, 149 Mass. 550, 554 (1889). General Laws c. 139 provides for both types of proceedings. Section 5 establishes criminal penalties for maintaining a house of prostitution. See G. L. c. 272, § 24. Section 15 makes it a crime to maintain a place for illegal gaming or a place for the illegal keeping or sale of alcoholic beverages. Actions to abate specific common nuisances are authorized by G. L. c. 139, §§ 4-13 (premises used for prostitution), and §§ 14-16A (premises used for illegal gaming; illegal keeping or selling of alcoholic beverages; or illegal keeping, selling, or manufacturing of controlled substances). A proceeding under § 19 is neither a criminal action nor an equitable action to abate a common nuisance. It creates a private remedy for a lessor or owner of realty to terminate the tenancy of a ten
Section 19 and its predecessors have never authorized a lessor or owner to bring suit to abate a common nuisance.
Although G. L. c. 139, § 19, makes no provision for a trial by jury, neither does it foreclose trial by jury. Article 15 has been construed as preserving the right to trial by jury in actions for which a right to trial by jury was recognized at the time the Constitution of the Commonwealth was adopted in 1780. See Frizado v. Frizado, 420 Mass. 592, 595 (1995); Department of Revenue v. Jarvenpaa, 404 Mass. 177, 186 (1989). At that time, the common law afforded a tenant the right to trial by jury on a landlord’s writ of entry, the procedure to evict a tenant after the expiration or termination of a tenancy. Thus, the right to trial by jury in eviction cases has been preserved under art. 15. See Davis v. Alden, 2 Gray 309, 312 (1854); Kargman v. Dustin, 5 Mass. App. Ct. 101, 108 (1977). The Supreme Court reached a similar conclusion under the Seventh Amendment to the Constitution of the United States with respect to eviction proceedings in the District of Columbia. See Pernell v. Southall Realty, 416 U.S. 363, 373-375 (1974). The Legislature may impose reasonable conditions on a tenant’s right to trial by jury before eviction, such as requiring payment of all rents due the landlord. See G. L. c. 239, § 5. But a' tenant who meets such conditions is entitled to a trial by jury before being evicted. See Davis v. Alden, supra; Kargman v. Dustin, supra.
The controversy at hand is one that, in the words of art. 15, “concern[s] property,”* *******
The recent amendment to G. L. c. 139, § 19, was enacted by the same legislation that produced parallel changes to G. L. c. 121B, § 32. See St. 1995, c. 179. One purpose of the. legislation was to provide for the speedy removal of tenants who commit any of the criminal acts described in § 19, whether the remedy pursued is the equitable remedy under § 19, or summary process under chapter 239. General Laws c. 121B, § 32, seventh par., states that summary process actions brought against public housing tenants for any of the reasons set forth in G. L. c. 139, § 19, “shall be accorded an expedited hearing and trial.” Section 19 states that equitable relief available thereunder may result in an order “granting the lessor or owner possession of the premises . . . forthwith.” These sections should be construed harmoniously, consistent with the purpose of the legislation that produced them. The remedies should be available with comparable ease. See Yeretsky v. Attleboro, 424 Mass. 315, 319 (1997). Because actions under § 19 are in the nature of an eviction they may be treated as summary process actions. The Uniform Summary Process Rules govern summary process actions, and they accommodate the right to a jury trial as well
We address the other issues raised by Olan because they are likely to arise at retrial.
3. Notice of termination. Olan claims that the housing authority failed to give her prior written notice of termination as required by State and Federal law. She did not raise this issue in her answer, and she did not appeal from the denial of her post-trial motions for relief under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), and her motion to dismiss, in which she did raise the issue. The issue is waived. Because there is some uncertainty over the question, because it involves a matter of public interest that is likely to arise in the future, and where the issue has been fully briefed, we will address the issue. See Canter v. Commissioner of Pub. Welfare, 423 Mass. 425, 432 (1996).
The Appeals Court did not decide the statutory question, but instead held that, because Olan had actual notice of termination of her tenancy, the requirements of due process had been satisfied. Although requirements of due process were satisfied, the requirements of G. L. c. 121B, § 32, seventh par., were not.
That section states, in part: “The tenancy of a tenant of a housing authority shall not be terminated without cause and without reason therefore given to said tenant in writing prior to such housing authority filing an action for summary process or
4. Lawful presence of police. Olan argues that the judge erred in concluding that the police officers were lawfully on the premises when they were assaulted and beaten by her and members of her family. The burden of proof is on the housing authority to justify the officers’ presence at Olan’s apartment without a search warrant. See Tyree v. Keane, 400 Mass. 1, 7-8 (1987). The housing authority relies on the exigent circumstances and the “hot pursuit” exceptions to the warrant requirement. See W.R. LaFave, Search and Seizure § 6.1 (d) (3d ed. 1996). The question whether the police were lawfully at Olan’s apartment is a question of fact to be decided by the jury.
5. Discovery. Olan contends that the trial judge abused his discretion by denying her discovery needed to prepare an adequate defense. As previously stated, proceedings under G. L. c. 139, § 19, may be treated as actions for summary process. Tenants should be afforded the same discovery opportunities in an action under § 19 as they would receive in a summary process action. Rule 7 of the Uniform Summary Process Rules provides an opportunity for discovery that should be adequate for the vast majority of cases that are likely to arise under § 19. Olan filed a set of interrogatories. She made no other discovery requests. The judge ordered discovery to be completed before trial, and it was. Olan received the discovery she requested.
The judge’s refusal to enforce Olan’s subpoena of an assessment of the New Bedford police department, the so-called Brat-ton Report, was not error. The report was not relevant to any issue at trial.
Finally, Olan contends that the judge abused his discretion by denying her motion for a continuance because she was not able to prepare an adequate defense. Although the trial began two weeks after the complaint was filed, and resumed after a ten-day hiatus, Olan has not demonstrated any prejudice. The judge acted within his discretion in ordering expedited discovery and setting the case down for a speedy trial. His scheduling orders were entirely appropriate for this type of case.
The judgment is vacated and the case is remanded for a trial by jury.
So ordered.
The housing authority did not allege a breach of the terms of Olan’s lease, and a copy of her lease is not included in the record appendix.
General Laws c. 139, § 19, as amended through St. 1995, c. 179, § 13, states in relevant part: “If a tenant or occupant of a building or tenement,
Article 15 of the Massachusetts Declaration of Rights states, in relevant part: “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred.”
The right to trial by jury in civil cases guaranteed by the Seventh Amendment to the United States .Constitution has not been made applicable to the States through the Fourteenth Amendment to the United States Constitution. See Walker v. Sauvinet, 92 U.S. 90, 92 (1875); Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 223 n.4 (1994).
The record does not disclose his first name.
The Appeals Court opinion describes the evolution of § 19 over its long history. See New Bedford Hous. Auth. v. Olan, 50 Mass. App. Ct. 188, 195-196 nn. 13 & 14 (2000).
Unlike the common nuisances and other criminal acts specified in § 19 which, to be actionable thereunder, must be committed on the leased premises or common areas which the tenant is entitled to use, “an act . . . which would constitute a crime involving the use or threatened use of force or violence” is actionable under § 19 if it occurs anywhere on housing authority property.
The housing authority filed a motion for preliminary injunction, which was denied. Although preliminary injunctive relief may be appropriate in this type
The Appeals Court correctly concluded that a public housing tenancy is an interest in property. See New Bedford Hous. Auth. v. Olan, supra at 197-198, citing Greene v. Lindsey, 456 U.S. 444, 450-451 (1982) (right to continued residence in public housing is a significant property interest).
Rule 2 (c) of the Uniform Summary Process Rules (West 2001) establishes a schedule for prompt 'trials; Rule 7 establishes a procedure for expedited discovery; and Rule 8 provides for trial by jury “insofar as jury trial is available in the court where the action is pending.” Jury trials in summary process actions are currently available in the Housing Court (G. L. c. 185C, § 21), in the Superior Court (Uniform Sum. Proc. R. 2 (c) — original summary process entries are to be tried to a jury in the next nonjury session after entry), in the Central District Court of Worcester (G. L. c. 218, § 19 A), and in designated jury session locations for all District Court divisions in Berkshire, Essex, Middlesex and Norfolk counties. St. 1996, c. 358, § 8, as amended by St. 2000, c. 142.
See Rule 9 of the Uniform Summary Process Rules.
Olan has not shown that the notice requirements of G. L. c. 121B, § 32, differ in any significant respect from the Federal notice requirements as would trigger any preemption of the former by the latter. See Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 277-281 (1969) (local public housing authority must comply with Federal law requiring notice to tenant of federally subsidized housing program when terminating tenancy). See also 42 U.S.C. § 1437d(l)(3), (6); 24 C.F.R. § 966.4 (l)(3)(i) (1997).
Concurrence Opinion
(concurring, with whom Greaney and Cordy, JJ., join). The provisions of G. L. c. 139, § 19, are intended to provide a prompt mechanism by which to remove from public housing those tenants who commit criminal acts of violence or threatened violence against other tenants, housing authority personnel, or others lawfully on public housing premises. For obvious safety reasons, and to reassure frightened tenants, visi
While I agree that tenants who face the annulment of their lease pursuant to G. L. c. 139, § 19, are entitled to a jury trial under art. 15 of the Massachusetts Declaration of Rights, nothing in art. 15 prevents the court from issuing a preliminary injunction in those cases where even the most expedited trial will not prevent the ongoing harm of violence or threatened violence on public housing premises. The statute expressly provides that a preliminary injunction may issue, and the Uniform Summary Process Rules (which the court uses as a reference point for the expeditious handling of such cases) also provide for preliminary injunctive relief. See Rule 9 of the Rules of the Uniform Summary Process Rules (applying standards of Mass. R. Civ. P. 65, 365 Mass. 832 [1974], for restraining orders and injunctions in summary process cases). While the full extent of the preliminary equitable relief allowable under G. L. c. 139, § 19, may be unclear and is not presently before us (ante at 369 n.8),
To obtain preliminary injunctive relief under those standard equitable principles, a housing authority must show that, without such relief, it “would suffer irreparable harm, not capable of remediation by a final judgment .... [I]t must also show that there is a likelihood that [it] would prevail on the merits of the case at trial.” John T. Callahan & Sons v. Malden, 430 Mass. 124, 131 (1999). A judge considering an application for a preliminary injunction must also balance the likelihood of irreparable harm to the housing authority against any harm likely to fall on the tenant against whom such an injunction would issue. See id. See also Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-617 (1980). Thus, if a housing authority
Our decision today, upholding the tenant’s right to trial by jury, leaves intact the remedy of preliminary injunction for those cases presenting an exigent need to remove the offending tenant from the public housing premises pending trial. Appropriate use of that preliminary equitable relief is consistent with the Legislature’s determination that violence in public housing projects be remedied swiftly for the benefit of all who live and work there.
Specifically, as the court notes {ante at 369 n.8), the literal wording of the statute arguably allows the issuance of an execution for possession as a form of preliminary relief, even though an execution for possession would normally be the final relief accorded to a prevailing housing authority. Resolution of the legal ramifications that flow from that anomalous wording must await an appropriate case.