Case Focus: Due Process Rights of Disabled Tenants in Massachusetts

De Novo Housing and Disability Supervisor Courtney Libon discusses the impact of the recent Glendale Associates, LP v. Harris decision in the Nov. 18, 2020 edition of the Boston Bar Journal.

Since the establishment of the first Massachusetts Housing Court in 1971, the need for the resolution of housing-related disputes has increased exponentially. Under the leadership of the late Supreme Judicial Court (“SJC”) Chief Justice Gants and Trial Court Chief Justice Carey, every community in the Commonwealth now has access to housing court, with expert judges, housing specialists, pro bono resources, and special code enforcement sessions. These features are intended to make courts more user-friendly and to assist pro se litigants in navigating the intricate system of housing court litigation. See Adjartey v.  Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019) (“Adjartey”).

Over 60,000 cases are filed in housing courts each year, the vast majority of which are evictions involving a dizzying array of procedural technicalities administered at lightning speed. Tenants can go from first notice to homelessness in just a few days under the Common Nuisance Statute, G.L. c. 139, § 19 (“Nuisance Statute” or “Section 19”); with many more losing their right to possession in the course of a few weeks under the Summary Process Statute, G.L. c. § 239, which expedites civil procedure in evictions. Even with the benefits of specialized housing courts, litigants, a majority of whom are pro se and many of whom have disabilities, struggle to enforce their rights in the high-stakes eviction proceedings.

In a recent decision, Glendale Associates, L.P. v. Harris, 97 Mass. App. Ct. 454 (2020) (“Glendale”), the Appeals Court took the unusual step of shining a light on how, even within the framework of the housing courts’ special benefits and discretion, due process requires that pro se litigants with disabilities be afforded the opportunity to assert their claims and defenses without unreasonable conditions that impede access to justice.

Case Background: Glendale Associates, L.P. v. Harris

On May 20, 2016, Glendale Associates (“Landlord”) brought action in the Eastern Division of the Housing Court Department (“Court”) invoking the Nuisance Statute to void the lease of Kevin Harris, a disabled tenant receiving services from the Department of Mental Health (“DMH”), and seeking an order requiring Mr. Harris to immediately vacate his federally-subsidized apartment. The complaint alleged that Mr. Harris threw bottles from his apartment window targeting the Landlord’s employee. The Nuisance Statute authorizes landlords to seek immediate voidance of the lease of a subsidized tenant who engages in any of enumerated activities under Section 19, including crimes of violence against building employees. G.L. c. 139, § 19. The Court issued, ex parte, a temporary restraining order barring Mr. Harris from entering his home until further order of the Court, and subsequently issued a preliminary injunction without findings that rendered Mr. Harris homeless for the duration of the litigation while he defended the action pro se.

While Mr. Harris denied the allegations in the complaint, the Court focused on a treatment plan to address his mental health impairments and the behavior alleged. On August 9, 2016, Mr. Harris’s DMH case worker submitted a detailed treatment plan that would allow Mr. Harris to return to his apartment and reside there in compliance with his lease as a reasonable accommodation of his disability. The Court rejected the DMH plan and instead crafted and ordered a more onerous plan that, among other requirements, conditioned allowing Mr. Harris to return to his apartment as of September 1, 2016 upon filing of documentation that he was working or attending a day program and otherwise would be out of his apartment for at least five hours per day, and meeting a visiting nurse daily for medication administration notwithstanding that such services could not be arranged during Mr. Harris’s court-ordered  homelessness. The judge also imposed a “gatekeeper order” preventing Mr. Harris from submitting further pleadings or documents without Court permission. Despite repeated efforts by Mr. Harris’s service providers to demonstrate that the conditions in the Court’s treatment plan were not feasible or medically appropriate and to offer alternatives, the Court maintained the requirements of its own ordered plan and continued to find Mr. Harris’s efforts insufficient to allow him to return to his apartment.

On December 4, 2016, the Landlord moved for a default pursuant to Mass. R. Civ. P. 55 on the basis that Mr. Harris failed to answer or “otherwise defend” its complaint, and thereafter, the clerk entered the default without explanation. On January 19, 2017, the Landlord moved for entry of final judgment and issuance of execution for possession based on the default. The Court declined to take action on Mr. Harris’s submissions made in response because he “failed to obtain written permission of the court for filing” as per its gatekeeper order, but also did not act on his subsequent pro se request to file a motion.

At a February 15, 2017 review hearing, the Court stayed its decision on the Landlord’s motion for entry of final judgment and appointed a guardian ad litem (“GAL”) to assist Mr. Harris in compliance with the Court’s treatment plan. Although the GAL diligently complied with his appointment and submitted two reports and a new proposed treatment plan, on May 10, 2017, the Court allowed the Landlord’s renewed motion for final judgment and execution without a hearing, thus depriving Mr. Harris of even the Court-promised opportunity to respond orally at a hearing on the Landlord’s motion, and to otherwise defend himself as to the allegations in the complaint.  Mr. Harris moved for reconsideration, which was denied after hearing.

Court Holdings

In vacating the judgment and remanding the case, the Appeals Court took care to detail the course of the litigation, illustrating why the entry of default was not only legal error but “fundamentally unfair,” an abuse of discretion, and a violation of due process where the Court “bypassed the question of Harris’s liability under Section 19 and proceeded directly to the remedial phase of the litigation,” repeatedly denying Mr. Harris the opportunity to defend against the complaint, including through the gatekeeper order. 97 Mass. App. Ct. at 465. The Appeals Court observed that a default was inappropriate because, at a minimum, Mr. Harris was entitled to an evidentiary hearing under the Nuisance Statute, and his active participation in the litigation through a year of court-ordered homelessness met the standard for “otherwise defending” under Mass. R. Civ. P. 55.

The Appeals Court also provided a useful roadmap for reasonable accommodations in the context of Housing Court proceedings, reminding that: (1) it was the Landlord’s burden — not Mr. Harris’s — to demonstrate, through an individualized assessment and the interactive process, that no reasonable accommodation was feasible, and (2) the trial courts have a duty to make findings sufficient to permit appellate review, “based on current medical knowledge and reasonable judgment and objective evidence,” as to the reasonableness of a proposed plan and whether the risk posed by a disabled resident may be eliminated or acceptably minimized by a proposed accommodation. 97 Mass. App. Ct. at 462-464 (citing to Adjartey, 481 Mass. at 849 and Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 850 (2009)). Thus, the Court’s imposition of its own treatment plan, without explanation and findings necessary for appellate review, was an abuse of discretion.

Conclusion

Glendale makes clear that the reasonable accommodation requirements articulated by the SJC in Bridgewater and Adjartey apply equally to emergency proceedings under the Nuisance Statute as other civil proceedings, but do not substitute for the due process rights of all litigants to defend against a complaint. Glendale also powerfully reminds us that evictions result in much more than loss of housing, but may also result in loss of access to medical treatment, systems of support, and educational and employment opportunities. Today, ushered by the COVID-19 pandemic, the stakes are higher than ever. This is a historic moment to consider fundamental change to ensure that all litigants, including disabled and pro se tenants like Mr. Harris, have meaningful and equal access to justice.