Published on: February 22, 2002
Most attorneys will tell you that bad cases make bad law – usually, but not always. And sometimes a judicial outcome that appears negative in theory can be quite positive in its effects. A recent decision by the Massachusetts Supreme Judicial Court (SJC) illustrates both points.
The fact pattern certainly made New Bedford Housing Authority v. Olan a textbook example of a “bad case.” New Bedford police officers followed a fleeing suspect onto the grounds of Presidential Heights, a public housing project, and through the open door of a unit occupied by Elba Olan, who had been a tenant in the development for about three years. The tense encounter escalated quickly from shouting to shoving, leading officers to arrest Olan (for striking one of them) and then her daughter, who pushed the arresting officer and Olan down the stairs.
The situation went from bad to worse and before it ended, the State Police had to be called to help disburse an angry crowd of about 100 rock-throwing project residents, who had gathered outside the building to protest the police actions.
The New Bedford Housing Authority (NBHA) subsequently filed an action under Massachusetts General Laws Chapter 139 Section 19, which allows a court to void a lease immediately when a public housing tenant commits one of several specified “nuisances,” including “acts involving the use or threatened use of force or violence against the person of an employee of the housing authority…or agents of any person legally…on the premises.”
The Housing Court Judge who heard the case rejected Olan’s request for a jury trial and granted the NBHA’s request for an immediate eviction. Olan appealed and the Appeals Court found that she was, in fact, entitled to a jury trial – a decision the SJC affirmed.
The ruling prompted an outcry from landlords, who complained that granting a jury trial would essentially gut the purpose of the statute, which is to enable landlords to deal expeditiously with tenants who are committing illegal acts – typically drug-related – in rental housing.
The process usually works like this: Other tenants notice and complain about the illegal activity to the landlord, who notifies the police, or law enforcement officials become aware of the problem on their own. A “bust” ensues, and the offending occupants of the unit (who may or may not be the tenants on the lease) are arrested, booked, and usually released on bail pending a trial. But the drug bust provides the evidence of illegal activity that a landlord needs to bring a successful action for removal of a tenant under Section 19, which requires an arrest, but not a conviction. Armed with the police report, the landlord or property manager files a complaint seeking expedited action; the court schedules a hearing within a few days under a “short order of notice.” The detectives involved in the bust testify for the landlord and the judge issues an order requiring the tenants to vacate immediately, allowing some limited time for them to pack and remove their belongings.
A Well Oiled Machine
That is how the process was working before the Olan decision, and landlords feared the jury trial requirement would throw a large wrench into what had been, from their perspective, a well-oiled legal machine. But as a practical matter, the decision is more likely to grease the wheels than to jam them. Two points are important:
A jury trial will not necessarily delay the removal process inordinately, or at all. As the SJC noted in its opinion, “The commencement of Olan’s trial would have been delayed only by the time needed to empanel a jury.” Equally significant, a jury trial would not increase the odds of a decision favoring the tenant. Section 19 cases usually involve such unpleasant people doing such unpleasant things, that a jury is unlikely to do anything other than what a judge would do—order the bad tenants out. While the SJC in this decision said that defendants in a Section 19 proceeding have a right to a jury trial, the court also noted that landlords have a right to seek a preliminary injunction, barring a tenant’s access to the unit in the interim. This is the crucial point overlooked by those who see the decision as a blow to the Section 19 remedy.Temporary Order Remedy “Intact”
“Section 19 does not confer equitable jurisdiction to abate a common nuisance, because its purpose is to remove offending tenants, not remedy their conduct,” Justice Francis Spina wrote in the majority opinion. “However, equitable relief may be granted under Chapter 19 pending trial to restrain a tenant’s continuing unlawful conduct.”
A concurring opinion makes this point even more clearly. “Nothing in Article 15 (of the Massachusetts Declaration of Rights) prevents a court from issuing a preliminary injunction in those [Section 19] cases where even the most expedited trial will not prevent the ongoing harm of violence or threatened violence on public housing premises,” the opinion notes. The decision upholding a tenant’s right to a jury trial, the opinion continues, “leaves intact the remedy of a preliminary injunction in those cases presenting an exigent need to remove the offending tenant from the public housing presence pending trial.”
To obtain an injunction, a public housing authority must demonstrate:
“That it will likely prevail on its underlying claim to void the lease or tenancy on account of the defendant’s past violent criminal conduct; That the defendant’s continued presence on the public housing premises pending trial on the merits poses a risk of irreparable harm (e.g., that the tenant is likely to injure or threaten housing authority personnel or the tenants, is likely to destroy housing authority or other tenants’ property likely to interfere with other tenants’ quite enjoyment, or likely to interfere with housing authority operations); and “That the risk of irreparable harm outweighs the harm that the tenant would suffer as a result of the injunction….”Courts granting injunctions under that framework can tailor the order “to satisfy the need demonstrated by the housing authority, and to minimize the harm to the defendant, the opinion notes.
Better than an Eviction
The decision does not break significant new legal ground in this area, but it does clarify the court’s authority to issue a preliminary order in Section 19 cases. That remedy was not clearly defined before, and it is extremely effective. The injunctions we have sought and won since the Olan decision (and before) do not terminate the tenancy, but they do achieve the primary goal, which is to get the tenant off the property. Whether a jury trial takes a few weeks or a year after that does not matter, because the tenant is gone and cannot return without risking a contempt finding (and a likely eviction order) for violating the court order barring access to the property. In this respect, a temporary order has the same effect as an eviction judgment, only it is better, because you don’t actually have to try the case.
Property owners should not underestimate the power of one of these orders. If a drug arrest occurs on Monday and the court enters a temporary removal order on Friday, that sends a clear message that the property has a zero tolerance policy and enforces it. This will please other tenants, by demonstrating that the landlord is taking action to create a safe environment for them. And it will make drug dealers less likely to live in the property and less likely to deal drugs from there if they do. It is like a police car parked on the side of the highway to warn speeders—it definitely has a deterrent effect.
While the Olan decision discusses the temporary order option in the context of public housing, the broad principles outlined in the decision and the concurring opinion apply equally to the Section 19 remedies available to owners or mangers seeking to remove tenants from private rental properties. The right to a jury trial in these proceedings does not do very much for tenants trying to fight drug-related eviction orders, but the temporary order option makes Section 19 an even more powerful weapon for landlords than it has been in the past.