387 Mass. 258 | Mass. | 1982
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.
We summarize the findings on which each judgment was based.
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.
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
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, at least within the limits set by § 32, eviction of tenants from public housing on the basis of violent acts by a 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
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.
We stated in Spence v. Reeder, 382 Mass. 398, 421 (1981), that at least when a tenant knows or has reason to know of
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, 11 Mass. App. Ct. 444, 448 (1981). 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 (1941). For reasons cited in our discussion of the lease clauses, we believe that violent acts by house
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 connection between the tenant and the conduct underlying the termination. The first influential circumstance is the severity of the consequences of eviction. See Caulder v. Durham Hous. Auth., 433 F.2d 998, 1003 (4th Cir. 1970), cert. denied, 401 U.S. 1003 (1971); McQueen v. Druker, 317 F. Supp. 1122, 1130 (D. Mass. 1970), aff’d, 438 F.2d 781 (1st Cir. 1971). The BHA’s housing developments provide housing of last resort. Admission is conditioned on serious need. G. L. c. 121B, § .32. A determination to evict entire families for acts that they could not avert by any means, while it might not be arbitrary or irrational in the constitutional sense,
A second, perhaps related, circumstance is the presence of unsettled constitutional questions. As will be seen, we are not persuaded that “personal responsibility” is a constitutional prerequisite to eviction for the acts of household members. Nevertheless, we prefer to read the statute in a way that will avoid constitutional doubts. See, e.g., Worcester County Nat'l Bank v. Commissioner of Banks, 340 Mass. 695, 701 (1960).
The evidence in the present cases does not negate the inference of awareness of and ability to prevent violence. Neither tenant identified circumstances, such as the wrongdoer’s very young age or prior record of good conduct, that
3. Constitutional Claims.
a. Personal responsibility. We turn now to the tenants’ argument that the BHA could not constitutionally terminate their tenancies without proof that they were responsible for their sons’ acts. The tenants’ claims to constitutional protection reach beyond the relief provided by our construction of G. L. c. 121B, § 32. Both tenants would re
The tenants’ claims are based on a perceived principle of substantive due process
Several lower Federal courts have applied the concept of “personal guilt” described by Justice Harlan in civil contexts, including that of eviction from public housing. Tyson v. New York City Hous. Auth., 369 F. Supp. 513, 518-519 (S.D.N.Y. 1974) (holding unconstitutional evictions based on the conduct of adult children not living in the tenants’ households at the time of the wrongful conduct). See St. Ann v. Palisi, 495 F.2d 423, 425-428 (5th Cir. 1974) (holding unconstitutional suspension of children from public school because of mother’s conduct toward school officials) . Other courts, however, have upheld termination of public housing tenancies on the basis of conduct by house
The problems that have prompted the Supreme Court to speak of personal responsibility, or “guilt,” are distinguishable from the present cases. They have involved criminal penalties inhibiting political association, e.g., Scales v. United States, supra, arbitrary classifications, e.g., Plyler v. Doe, supra, or other particular forms of injustice that can be limited to the facts presented, e.g., Robinson v. California, supra (criminal penalties for illness). The tenants here have not identified an impermissible classification, or, apart from the asserted punishment without responsibility, an intrusion upon individual rights. Cf. Bryan v. Kitamura, 529 F. Supp. 394, 398-402 (D. Haw. 1982) (statute imposing strict vicarious liability on parents for children’s torts infringes no fundamental right, and draws no suspect classification) .
Despite these points of distinction, we are willing to assume that the Court’s various statements reflect a principle that punitive action must be based on personal responsibility. In other words, when the only justification for a legal burden, penalty, or classification is to punish or deter conduct, the burden cannot fairly be imposed on individuals who have no means of avoiding it. If punishment or deterrence is directed toward individuals who cannot affect the offending conduct, it is illogical. If it is directed toward the wrongdoer, whom the government hopes to reach through its action toward those close to him, it may be logical and
We believe, however, that the tenants have conceived this concept of personal responsibility too broadly in their attempt to apply it to the present cases. First, we doubt that it has any application when the imposition is supported by reasons of public health, safety, or welfare, apart from mere deterrence of others’ conduct. Action against individuals in a particular position often may contribute directly and significantly to the solution of a problem of health, safety, or welfare despite the fact that the burdened individuals have not, by any act or omission, caused the problem. Examples can be found in the operation of zoning regulations, see, e.g., Pierce v. Wellesley, 336 Mass. 517, 522-523 (1957), or workers’ compensation laws, see, e.g., Caswell’s Case, 305 Mass. 500, 502 (1940). In such a case, there is a legitimate connection between the individual and the imposition, beyond the mere possibility that he can be used to influence another. Unless the government action in question involves an improper classification, or encroaches on constitutionally protected substantive rights, the balance of affected interests is best left to the judgment of legislative and administrative bodies, and the constitutional issue narrows to one of rational relationship between means and ends. See Bogan v. New London Hous. Auth., 366 F. Supp. 861, 867-870 (D. Conn. 1973). See also Bryan v. Kitamura, 529 F. Supp. 394, 398-400 (D. Haw. 1982) (upholding strict parental liability for child’s tort); Board of Educ. of Piscat-oway Township v. Caffiero, 86 N.J. 308, 317-320, appeal dismissed, 454 U.S. 1025 (1981), and cases cited (same). Cf. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-488 (1955); Nebbia v. New York, 291 U.S. 502, 537-539 (1934); Miller v. Schoene, 276 U.S. 272, 279-280 (1928).
The BHA’s purpose is clear, and certainly legitimate. It seeks to promote safety in the housing projects. It suggests two ways in which eviction of the Gormley and Bunting
The BHA presents a second, more persuasive justification for eviction of the wrongdoer’s family. Prompt and complete removal of a violent resident is an effective means of preventing further violence. The continued presence of the wrongdoer’s household, however, is likely to attract him to the project. Evicting the entire household minimizes the possibility of return. The tenants propose alternative ways to keep the wrongdoer away from the housing projects, such as an agreement conditioning the mothers’ continued tenancy on their prevention of the sons’ return, or an injunction.
Eviction might seem a harsh measure when applied to tenants who had done what they could to prevent violence by household members. We have assumed, in construing the general requirement of “cause” in G. L. c. 121B, § 32, that the Legislature intended to provide some relief in such a case. But even if the statute permitted eviction of tenants who could not have foreseen or affected the conduct of household members, and so bore no degree of personal responsibility, we would hesitate to hold the eviction was unrelated to safety or otherwise beyond the power of the Legislature.
Our construction of § 32, however, provides an alternative and more definite reason to uphold evictions based on acts by household members. Even if we assume that the government is restrained by a requirement that all legal burdens — even those that directly serve public health, welfare, or safety — must be based on personal responsibility, that requirement is satisfied by the “cause” requirement of § 32, as we have construed it. In the relationship of a tenant to a member of her household, particularly a child, the natural inference that the tenant is aware of and able to
The element of personal responsibility encompassed by § 32 also adds to the connection between eviction and legitimate government purposes. As construed, § 32 serves to encourage tenants to attempt to guide the conduct of household members, and to seek help when they are unable to. Thus, there is additional reason to conclude that an eviction under § 32 is not an arbitrary measure.
b. Standard of proof. The tenants argue that principles of procedural due process require particularly strong proof that members of their households committed the acts of violence on which the evictions are founded. In each case, the judge applied the ordinary civil standard of proof by a “preponderance” of evidence. The tenants insist that the proper standard was at least that of “clear and convincing” proof, if not that of proof “beyond a reasonable doubt.” We conclude that no special standard of proof was necessary.
Minimum due process varies with context. In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Court identified three “distinct factors” that determine what procedures are necessary in particular cases affecting protected “liberty” or “property” interests. These are “ [f ]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
The first consideration — the individual rights that may be affected — is particularly important here because a standard of proof is itself a reflection, and a signal to the factfinder, of the significance of the rights at stake. See Addington
A tenant’s interest in her public housing tenancy, formalized in her lease as well as in the statutory requirement of “cause,” is a protected interest, entitling her to fair procedures before the government can terminate it. See, e.g., McQueen v. Druker, 317 F. Supp. 1122, 1130 (D. Mass. 1970). See generally L. Tribe, American Constitutional Law 522-532 (1978).
The second measure of minimum procedure is the risk of error. Any increase in the housing authority’s burden of proof will, of course, diminish the risk of erroneous deprivation of individual rights. Under any given standard, however, the risks of error are fewer in a summary process proceeding based on acts of violence than in commitment proceedings or proceedings to determine parental unfitness. The hous
The State, and housing authority tenants, have a strong interest in effective use of available measures to combat the terrifying incidence of violence in the housing projects. The State’s specific interests in evicting tenants whose household members have participated in acts of violence and destruction within the projects have already been identified — prompt and effective removal of the wrongdoer from the housing project, and encouragement of tenants to monitor and restrain the conduct of household members. Eviction on the basis of an erroneous determination of the relevant facts will not, of course, promote these interests. See Santosky v. Kramer, supra at 765-766; Addington v. Texas, supra at 426. On the other hand the State’s interests call for eviction whenever the facts warrant it. A stricter standard of proof would frustrate them by increasing the likelihood of error in the tenants’ favor.
Applying the three Mathews v. Eldridge factors in the light of comparison with the situations in which the Supreme Court has required special degrees of proof in State proceedings, we conclude that due process does not demand a special standard of proof in proceedings to evict tenants from public housing on the basis of violent acts by household mem
4. Sufficiency of the Evidence of Violent Acts by Household Members.
Each tenant contends that the evidence connecting her son to firebombings on housing project premises was insufficient under any standard of proof. We review the evidence briefly, and conclude that in each case the judge’s finding that the tenant’s son participated in violent acts was supported by at least a preponderance of evidence.
a. Mark McDonough. The BHA began eviction procedures against Mrs. Gormley on the ground that her son Mark McDonough had participated in a firebombing on BHA premises, and had assaulted a BHA employee on BHA premises.
Mrs. Gormley contends that Mark’s presence at the scene of the firebombing does not establish his involvement. She also contends that flight is insufficient to support a finding of participation in the act. The various evidence, however, must be viewed in combination, and so viewed, is sufficient.
b. William Bunting. The BHA’s termination of Mrs. Bunting’s lease was based on William Bunting’s participation in a firebombing. The evidence implicating William was very similar to the evidence concerning Mark McDonough. A neighbor testified that she had seen William Bunting and George Foley (a friend), both of whom she knew, running from the scene of the firebombing immediately after it occurred. She saw no one else in the area. Shortly afterward, she saw William return to the building containing the firebombed apartment, out of breath, and enter an apartment belonging to George Foley’s uncle. George Foley’s cousin testified that George and William had been together that evening, thus corroborating one aspect of the neighbor’s testimony. For the reasons given in our discussion of Mark McDonough, this evidence was sufficient to support a finding that William participated in the firebombing.
5. Racial Motive.
Bunting questions the judge’s finding that William Bunting’s firebombing of a neighboring apartment was racially motivated. The only evidence bearing on this issue was the victim’s testimony that a man residing with her was part Micmac Indian. We need not consider whether this was a sufficient indication of racial motive, however, because the finding of motive was surplusage. A firebombing, whether or not motivated by racism, is an act of random and extremely dangerous violence. The presence of racial hostility may add to the urgency of the problem and the likelihood that more violence will ensue, but it is not necessary to justify prompt remedial action by the BHA.
6. Conclusion.
We conclude that the lease forms signed by both tenants, and the termination provisions of G. L. c. 121B, § 32, au
So ordered.
The BHA cannot, of course, “evict” a tenant without the aid of the summary process statute, G. L. c. 239, § 1, which authorizes a person legally entitled to possession of land or tenements to bring an action to recover possession. See G. L. c. 184, § 18. The outcome of the summary process action depends on whether the tenancy has validly been terminated, which depends in turn on the meaning and validity of the termination provisions of the lease. See Boston v. Talbot, 206 Mass. 82, 92-93 (1910).
Each tenant questions the sufficiency of the finding that her son committed the acts charged. In addition, Mrs. Bunting disputes a finding that she knew or had reason to know of her son’s propensity for violence, and a finding that her son’s conduct was racially motivated. We address these arguments, to the extent necessary, in the later sections of this opinion.
The judge allowed Mrs. Bunting’s requests for findings that she did not know or have reason to know her son (1) would commit the act charged or (2) intended to commit violent acts against the residents of the firebombed apartment. He found, however, that Mrs. Bunting “knew or should have known of her son’s violent tendencies particularly with reference to the occupants of [the firebombed] apartment.”
See Spence v. Reeder, 382 Mass. 398, 402 (1981), in which we summarized findings that “[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.”
This was reaffirmed by an amendment to § 32, added after the present cases arose. The amendment provides for expedited eviction procedures when “there is reasonable cause to believe that the tenant or a member of the tenant’s household” has committed certain acts, including possession or use of an explosive or incendiary device on or near a housing project. G. L. c. 121B, § 32, as amended through St. 1981, c. 510 (emphasis added) . The inclusion of acts by household members among the types of conduct singled out for expedited treatment clearly indicates that the Legislature viewed such acts as “cause” for termination. See Weston v. Maguire, 10 Mass. App. Ct. 540, 541 (1980).
See infra, part 3 (a).
Caldwell v. Zaher, 344 Mass. 590, 592 (1962), stated the rule that a parent is not vicariously liable for the torts of a child unless “the parent knows or should know of the child’s propensity for the type of harmful conduct complained of, and has an opportunity to take reasonable corrective measures.” See Sabatinelli v. Butler, 363 Mass. 565, 568-571 (1973); DePasquale v. Dello Russo, 349 Mass. 655, 657-659 (1965). The tenants’ reliance on these tort decisions is misplaced. First, the Legislature has since enacted a statute, G. L. c. 231, § 85G, as appearing in St. 1979, c. 172, that holds parents liable for “any willful act committed by [an unemancipated child under age eighteen] which results in injury or death to another person or damage to the property of another,” apparently without regard to the parents’ scienter or opportunity for control. Further, the question of eviction from public housing on the ground of acts by household members that endanger the safety and property of other tenants is quite different from that of compensation for the victims of children’s torts, and we do not consider either G. L. c. 231, § 85G, or prior decisions on vicarious liability, as determinative of the issues in this case.
William Bunting had a long history of delinquent conduct, and Mrs. Bunting had been warned by the woman whose apartment was firebombed that members of the Bunting household had been vandalizing the apartment. Mrs. Gormley’s son Mark McDonough is alleged to have participated in two violent incidents; a firebombing on May 11,1980, and an assault against a BHA employee on July 17, 1980. Mark’s arrest for the firebombing on May 13 should have alerted Mrs. Gormley to the possibility of violence.
The judge presiding at Gormley’s trial made no findings with respect to scienter or ability to control. The judge at Bunting’s trial found that Bunting had reason to know of her son’s propensity for violence, but had no control over his actions.
Many courts have held that the tenants have constitutionally protected property interests in their tenancies, and so are entitled to fair procedures to determine whether their protected interests have been infringed. E.g., Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937, 943 (2d Cir. 1974); Caulder v. Durham Hous. Auth., 433 F.2d 998, 1002-1003 (4th Cir. 1970), cert. denied, 401 U.S. 1003 (1971). See generally Vitck v. Jones, 445 U.S. 480, 488-491 (1980); L. Tribe, American Constitutional Law 522-563 (1978). It is a different question, however, whether the due process clause of the United States Constitution places substantive limits on the BHA’s, and the Legislature’s, ability to define the boundaries of the tenant’s interest. Substantive restrictions on government action have been based only on explicit constitutional guarantees, or on the most fundamental concepts of dignity and justice in the relationship between government and individual. See generally Moore v. East Cleveland, 431 U.S. 494, 541-551 (1977) (White, J., dissenting); L. Tribe, supra at 889-896. We are, then, on sensitive ground, and proceed with restraint.
Gormley suggests that in the case of her son, who is in prison, parole could be conditioned on his not returning to the project. The BHA, however, has no control over the terms of his parole.
Mrs. Gormley’s son, Mark McDonough, is now serving a six-to-ten year prison sentence. The judge nevertheless determined that Mark might return to Faneuil “in the near future.” This conclusion was based on consideration of Mark’s sentence (six-to-ten years), time already served (more than a year), and the possibilities of parole under G. L. c. 127, § 133 (after two-thirds, or possibly one-third, of the minimum sentence), special credits, and furloughs.
A significant body of accepted law imposing legal burdens without fault negates the possibility that due process requires that government action be based on culpability or carelessness. See Lambert v. California, 355 U.S. 225, 230-231 (1957) (Frankfurter, J., dissenting); Morrisette v. United States, 342 U.S. 246, 252-259 (1952). Thus, the problem is at most one of responsibility, in the sense of some contribution or connection on the part of the individual to undesirable acts or omissions.
We do not attempt to determine whether the tenants’ interests are simply “property,” as opposed to “liberty” interests, or whether such a distinction has any relevance to the degree of process due.
The tenants would add to the balance their asserted interest in freedom from punishment for acts for which they were not personally responsible. Whatever the extent of this interest, however, it is not the right at stake in the proceedings, and adds no weight to the tenants’ procedural claims. The relevant interest is the interest in continued tenancy in public housing projects.
The issue of the tenants’ responsibility under G. L. c. 121B, § 32, also depends largely on objective facts. The fact that the wrongdoer was a household member raises the inference of awareness of problems and ability to prevent violent acts on the premises. Rebuttal will generally consist of the wrongdoer’s age and prior record, or definite steps taken by the tenant to obtain help in avoiding violence.
Mrs. Gormley does not contest the finding that Mark assaulted a BHA employee, which was based on the employee’s testimony that Mark had taunted him with racial insults, threatened to kill him, and swung at his head with a large stick.