In this case we hold, as clearly required by the applicable law, that the Commonwealth has no duty to provide funds for the rehabilitation of certain property of the Boston Housing Authority (BHA). However, we emphasize the disturbing social implications of this holding (infra, part 2).
Certain appellants, namely the Commissioner of the Department of Community Affairs, the Secretary of Communities and Development, the Treasurer of the Commonwealth, and the Governor of the Commonwealth, appeal from a judgment (the "final decree") entered by a judge of the Housing Court of the City of Boston (Housing Court). These appellants are hereinafter referred to as the State defendants. We granted direct appellate review on application of all parties. We reverse the final decree and, for the reasons set forth in this opinion, remand the case for further proceedings in the discretion of the judge of the Housing Court.
Various tenants of the BHA filed a complaint in the Housing Court pursuant to G.L.c. 111, § 127H, to enforce the State sanitary code (see G.L.c. 111, § 127A) in public housing projects owned and operated by the BHA. The tenants requested the judge of the Housing Court to "enjoin ... [the BHA] from failing to correct" defective conditions in the premises in which they and a class of approximately 40,000 persons live.
The tenants subsequently moved to join the State defendants. As their grounds for relief, the tenants alleged that since these State officials had authority under various provisions of G.L.c. 121B to decide whether to
A hearing on the requests for preliminary injunctive relief was held before the judge of the Housing Court. On the basis of the evidence presented at that hearing and collected by the judge in the course of visits to certain projects, the judge made findings concerning the existence and extent of sanitary code violations, vandalism, crime, and racial segregation in BHA projects. The judge also found that the BHA did not have the financial resources to correct the sanitary code violations.
The judge ruled that under G.L.c. 111, § 127N, the State defendants were liable for the sanitary code violations and would be required to provide the funding necessary for rectification. He then entered the final decree, which incorporated in its entirety his "Findings, Rulings, Opinion and Orders." The State defendants
1. The State defendants do not dispute that the plaintiffs have satisfied, at least with respect to the BHA, all the requirements for a cause of action under G.L.c. 111, § 127H. Included in this area of apparent agreement is the assertion that remedies for violations of the sanitary code are available to tenants in public housing accomodations as well as to those in private dwellings. See West Broadway Task Force, Inc. v. Commissioner of the Dept. of Community Affairs, 363 Mass. 745, 752-753 (1973).
Additionally, from representations made by counsel in oral argument before this court, it is clear that the plaintiffs do not seriously contend that any obligation can be found on the part of the Governor or the State Treasurer as to the issues now before us because of the limited statutory involvement of these two officials with respect to low income housing. See G.L.c. 121B, § 26A. It is also established that the Commissioner of the Department of Community Affairs is not a proper party defendant because that position has been abolished by St. 1975, c. 163, effective April 30, 1975. The supervision and control of the Department of Community Affairs is now vested in the Secretary of Communities and Development (the Secretary).
It is true that the Commonwealth, through the Secretary, has certain supervisory authority over local housing authorities and is empowered to oversee most phases of the operations of local housing authorities. To that end the Secretary is given various powers to approve or disapprove the activities of these authorities together with rule making power and power to demand reports and other information. G.L.c. 121B, §§ 1, 11, 29, 30-32, 34, 35, 37. G.L.c. 23B, §§ 1, 3. See West Broadway Task Force, Inc. v. Commissioner of the Dept. of Community Affairs, 363 Mass. at 748. Nevertheless, the tenants primarily rely, as did the judge below in his rulings, on the provisions of G.L.c. 111, § 127N, to establish the Commonwealth's liability. Indeed, that appears to us to be the only statutory source from which
General Laws c. 111, § 127N, inserted by St. 1974, c. 681, states, in pertinent part, that a tenant petitioning a court of competent jurisdiction to enforce the sanitary code may join as a party defendant not only the owner of the premises but also "any individual, trust or corporation, partnership, association, or other person who, acting alone or with another, has the authority to decide whether to rehabilitate, or sell or otherwise dispose of the premises, with or without record title or recorded interest." If the owner is unable for financial reasons to provide effective relief, "[t]he owner and any person so joined shall be jointly and severally liable for taking any action or paying any damages ordered by the court."
It is plain that the Secretary cannot be held responsible under this statute unless the Secretary (1) is an "individual, trust or corporation, partnership, association, or other person," within the meaning of the statute, and (2) has the authority to decide whether to rehabilitate or sell or otherwise dispose of the premises. We hold that the Legislature did not intend to include the Secretary, or the Commonwealth, or any of its departments or agencies, among the entities described in § 127N as an "individual, trust or corporation, partnership, association, or other person."
On this issue, the State defendants' arguments, which are convincing, are that the judicial imposition of liability on the Secretary or any other representative of the Commonwealth is contradicted both by the ordinary meaning of the language used in § 127N, and by the legislative intent otherwise demonstrated.
The words employed by the Legislature are plainly inappropriate to identify the State or any of its agencies. By contrast, the State defendants point out, and we think persuasively, that when the Legislature did in fact determine to apply public health regulations, enacted pursuant to G.L.c. 111, to State agencies as well as other entities,
Further, in construing the language employed, we recognize that "[i]t is a widely accepted rule of statutory construction that general words in a statute such as `persons' will not ordinarily be construed to include the State or political subdivisions thereof." Hansen v. Commonwealth, 344 Mass. 214, 219 (1962). That the Secretary is an individual does not obscure the fact that he is a party to this suit only in his official capacity and that the essence of the judge's order in this case would impose liability on the Commonwealth through the Secretary and require the expenditure of funds of the Commonwealth.
The legislative intent as inferred from other sources is consistent with the plain language of c. 111, § 127N. No provision of G.L.c. 121B setting forth various governmental responsibilities with respect to public housing subjects the Commonwealth or its agencies to liability for sanitary code violations under G.L.c. 111. By contrast, the responsibilities of the BHA or any housing authority under the sanitary code can be said to be specifically provided for in G.L.c. 121B, § 28. Cf. Cameron v. Zoning Agent of Bellingham, 357 Mass. 757, 761 (1970). Further, the language of c. 121B, § 17, provides in effect a specific disclaimer of liability by the Commonwealth
All of this reasoning supports a conclusion that the Legislature did not intend to establish liability on the part of the Commonwealth or its departments in enacting the provisions of § 127N. Rather it appears that the Legislature in this section was providing against the possibility that the owners of private rental property might realize personal financial gain while at the same time screening themselves from responsibility for the repair of defective housing.
We have said that liability of any State defendant cannot be established under G.L.c. 111, § 127N, unless it is shown that the defendant is both an entity described within that section and "has the authority to decide whether to rehabilitate" the housing project. Since we hold here that the State defendants are not among the described entities, it is not necessary for us to reach the
The State defendants concede that there may be a limited State authority in c. 121B, § 26 (j), to rehabilitate local projects. These provisions are related to such limited funding as to appear unimportant in the context of this case. In any event, the tenants do not rely on § 26 (j), and the State defendants cite it as further proof that the Legislature did not intend to establish the "open-ended" State authority and duty for which the tenants contend.
There is also no necessity for us to reach the State defendants' further assertion that this is essentially a suit against the Commonwealth and is therefore barred by the doctrine of sovereign immunity.
2. The result we have reached is clearly required by the law. Nevertheless, the ramifications of our decision are disturbing.
Conditions in certain BHA projects are such as to justify the use of the adjectives "massive" and "critical." The judge has found that the great majority of the residential units owned and operated by the BHA, as well as the buildings themselves, "are not decent, nor are they safe and nor are they in compliance with the provisions of the State Sanitary Code." A substantial percentage of the rental units are unoccupied, with vacancies in one project as high as sixty per cent. The background is one of numerous crimes of violence and widespread vandalism. Vandalism has virtually destroyed hundreds of apartments, and large segments of the buildings themselves. The judge found that the residents did not perpetrate the vandalism.
These conditions directly affect a substantial percentage of the residents of Boston. The BHA owns and operates nineteen Federally aided developments for families of low income with a total of 10,348 dwelling units (seventy-three per cent of such units in the Commonwealth), ten State aided developments for families of low income with a total of 3,681 units (twenty-seven per cent of such units in the Commonwealth), twenty-five Federally aided developments for elderly persons of low income with a total of 2,613 units (ninety-four per cent of such units in the Commonwealth), and two State aided developments for elderly persons of low income with a total of 160 units (sixty per cent of such units in the Commonwealth). The BHA also leases from private landlords 2,655 dwelling units pursuant to various Federal programs (ninety-seven per cent of such units in the Commonwealth), and fifty-nine units pursuant to various State programs (three per cent of such units in the Commonwealth). Residents living in BHA owned and leased housing projects comprise in excess of ten per cent of the total population of Boston.
The judge entered a final decree, but it is clear from representations of counsel before us that the judge may well intend to retain jurisdiction of the matter. Apparently the preparation of plans for solution of some of the BHA problems has been ordered by the judge and we understand that a master has been or will be appointed to that end.
Of course, the future proceedings under this complaint can be binding only on the BHA. It is an understatement to say that our decision to order the dismissal of the complaint as to the State defendants limits the utility of further proceedings, since adequate funds to implement certain court orders are not available. As the judge found, "B.H.A. is unable for financial reasons to comply with orders made by this Court in this case pursuant to G.L.c. 111, § 127H to maintain its developments in compliance with the State Sanitary Code and to provide security to its tenants." Nevertheless, further proceedings, despite the lack of availability of State funds as decided in this case, may result in appropriate orders against BHA related to the sanitary code. See G.L.c. 111, § 127H. Moreover, additional proceedings may
3. The final decree of the Housing Court of the City of Boston is reversed as to the State defendants and the complaint is dismissed as to those defendants. The injunction against the State defendants is vacated. The case is remanded to the Housing Court for further proceedings as to the BHA in the discretion of the judge and consistent with this opinion.