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Adjartey v. Central Division of Housing Court Department

Supreme Judicial Court of Massachusetts, Suffolk

April 10, 2019

RUTH ADJARTEY & others[1]

          Heard: December 6, 2018.

         Summary Process. Housing Court, Costs and fees. Uniform Summary Process Rules. Indigent. Handicapped Persons. Practice, Civil, Summary process, Costs. Constitutional Law, Access to court proceedings. Supreme Judicial Court, Superintendence of inferior courts.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 28, 2017. A motion to dismiss was considered by Lowy, J., and a motion for reconsideration was also considered by him.

          Maryanne Reynolds, Assistant Attorney General, for the Central Division of the Housing Court Department.

          Brian Linehan for Federal Home Loan Mortgage Corporation.

          Marjorie Evans, pro se.

          Christine Hilton, pro se.

          John Schumacher, pro se.

          Annette Bent, pro se.

          Mychelyne Oliveira, pro se.

          Ruth A. Bourquin, Jessie J. Rossman, & Matthew R. Segal, for American Civil Liberties Union of Massachusetts, Inc., & another, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Cypher, & Kafker, JJ.

          GANTS, C.J.

         The petitioners in this case raise numerous concerns regarding summary process proceedings in the Worcester Division of the Housing Court Department, now part of the Central Division (Housing Court).[4] See St. 2017, c. 47, § 78. Although we affirm the single justice's order denying the petitioners' request for relief under G. L. c. 211, § 3, we take this opportunity to clarify several important issues raised by the facts alleged in this case: (1) the appropriate process for waiving court fees and costs based on indigency; (2) more narrowly, the process for waiving the cost of audio recordings of prior court proceedings for those found indigent; and (3) the obligation of Massachusetts courts to provide reasonable accommodations for parties with disabilities. In providing this guidance, we recognize that the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney.[5]


         Each petitioner in this case is or was involved in a summary process eviction action commenced in the Housing Court. Although the alleged experiences of these petitioners vary widely, each claims that he or she was improperly denied a fee waiver for audio recordings of his or her trial court proceedings, was unable to access audio recordings in time to prepare for a Housing Court or appellate court proceeding, or was required to reveal his or her indigency in open court while requesting audio recordings. The petitioners who were denied access to audio recordings argue that they were unable to learn what had happened at court hearings they were unable to attend or fully understand, and that they were therefore unable to adequately protect themselves from adverse legal action. Several petitioners further claim that the Housing Court denied them reasonable accommodations for their disabilities, thereby depriving them of equal access to the courts.

         On or about February 28, 2017, the petitioners in this case applied for relief pursuant to G. L. c. 211, § 3, in the county court. They argued in their petition that this court should exercise its superintendence power to (1) require that all requested audio recordings be provided to all indigent parties or, in the alternative, that recordings be provided without hearing in certain limited circumstances; (2) bar courts from following procedures that require parties publicly to reveal their indigency; (3) halt eviction executions for all indigent individuals pending thorough review of the Housing Court's denial of requests for audio recordings; (4) rewind petitioners' cases back to the point at which they were denied access to an audio recording; (5) order all courts hearing summary process actions visibly to display at least one poster explaining the rights of indigent litigants; (6) send an explanatory memorandum to judges and clerk-magistrates regarding the proper treatment of indigent litigants; and (7) reimburse indigent petitioners who paid for their audio recordings, or had others pay for them on their behalf. The petition further stated that the Housing Court repeatedly failed to provide reasonable accommodations for petitioners with disabilities.

         The Attorney General filed a motion to dismiss the petition on behalf of the Housing Court, arguing that the relief sought by the petitioners was available through the normal appellate process and that the petition failed to comply with a court rule requiring petitions filed pursuant to G. L. c. 211, § 3, to "name as respondents and make service upon all parties to the proceeding before the lower court." S.J.C. Rule 2:22, 422 Mass. 1302 (1996). The petitioners filed an opposition to the Attorney General's motion.

         On June 30, 2017, the single justice allowed the Attorney General's motion to dismiss the petition and ordered that the petition be denied without hearing. Having granted the motion to dismiss, the single justice made no findings of fact. The petitioners moved for reconsideration, and this motion was likewise denied without hearing. The petitioners filed a notice of appeal seeking review of the single justice's dismissal of their petition and denial of their motion for reconsideration, and the appeal was entered in this court.


         "Decisions of a single justice will not be disturbed on appeal absent clear error of law or abuse of discretion." Fogarty v. Commonwealth, 406 Mass. 103, 106 (1989). "Parties seeking relief pursuant to G. L. c. 211, § 3, must demonstrate both a violation of their substantive rights and the absence of another adequate or effective avenue of relief" (quotations and citation omitted). McDonough, petitioner, 457 Mass. 512, 517-518 (2010). Because the petitioners had adequate alternative avenues to seek review of their claims, we conclude that the single justice did not abuse his discretion or commit clear error of law in denying the petitioners' G. L. c. 211, § 3, petition.[6] In light of the facts alleged in this case, however, we think it important to clarify three issues: (1) the proper application of the so-called Indigent Court Costs Law, G. L. c. 261, §§ 27A-27G; (2) the process for obtaining audio recordings of Housing Court proceedings; and (3) the obligation of courts to provide reasonable accommodations for parties with disabilities.

         1. The complexity and speed of summary process cases, and disparities in legal representation between landlords and tenants.

         Before we confront the specific issues raised by this case, we must address its broader context: the unique nature of a summary process eviction. Specifically, we note that summary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not.[7] See Housing Court Department, Fiscal Year 2018 Statistics.

         We include a full discussion of the complexities and speed of an eviction case in an Appendix to this opinion, but briefly summarize the process here. In a summary process action pursuant to G. L. c. 239, a landlord or homeowner asserts a statutory right to remove an occupant from property and recover possession of the property. See Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515 (2003) ("Summary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute" [citation omitted]). Before filing a summary process action in court, a landlord must serve his or her tenant with a "notice to quit" informing the tenant that after a specified period of time, the landlord intends to evict the tenant. See Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 122 (2018) ("legally effective notice to quit is a condition precedent to a summary process action and part of the landlord's prima facie case") .

         Once the period specified in the notice to quit has ended, a landlord may serve his or her tenant with a "summons and complaint" specifying, among other things, the reasons for the requested eviction and the entry date by which the case will be commenced in the court. See Rule 2(b) of the Uniform Summary Process Rules (1993); Rule 2(d) of the Uniform Summary Process Rules (1993). This entry date must be scheduled for a Monday seven to thirty days after the tenant's receipt of the summons and complaint. See Rule 2(b) of the Uniform Summary Process Rules; Rule 2(c) of the Uniform Summary Process Rules (1993). The tenant's deadline to file an answer is determined from the entry date: no later than the Monday following the entry date, the tenant must file an answer denying any disputed statement in the complaint and setting forth all applicable defenses or counterclaims. See Rule 3 of the Uniform Summary Process Rules (1993); Rule 5 of the Uniform Summary Process Rules (1980). Also by the Monday following the entry date, either party may file a request for discovery. See Rule 7(a) of the Uniform Summary Process Rules (1993).

         An eviction hearing is automatically scheduled to take place on the second Thursday following the entry date. See Rule 2(c) of the Uniform Summary Process Rules. If either party files a request for discovery, this hearing is postponed to the fourth Thursday following the entry date. See Rule 7(b) of the Uniform Summary Process Rules (1993). On the date of the hearing, the parties may settle the dispute themselves, mediate their dispute with a housing specialist, or proceed to trial. If the parties reach an agreement, whether through settlement discussions or mediation, and that agreement is approved by a judge, it becomes a binding court order. See Boston Hous. Auth. v. Cassio, 428 Mass. 112, 113-114 (1998). If the parties proceed to trial, the judge issues a decision from which either party may appeal within ten days. G. L. c. 239, § 5 (a.) .

         Where a judgment enters in favor of the landlord after trial and the tenant files a notice of appeal, the tenant generally may not be evicted until the appeal is resolved because execution upon the judgment generally is stayed pending appeal.[8]See Mass. R. Civ. P. 62 (d), 365 Mass. 829 (1974). However, a court may order that the tenant provide the court with an appeal bond payable to the landlord or pay a sum of money for the use and occupancy of the premises while the appeal is pending. See G. L. c. 239, §§ 5-6.[9] In contrast, where a default judgment enters in favor of the landlord and the tenant files a motion for relief from that judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828');">365 Mass. 828 (1974), an appeal from the denial of that motion does not stay execution unless a separate motion to stay is allowed. See Id. ("motion under [Mass. R. Civ. P. 60 (b) ] does not affect the finality of a judgment or suspend its operation"); Mass. R. Civ. P. 62 (b), 365 Mass. 829 (1974) (court in its discretion may stay execution of judgment pending decision on motion for relief from judgment).

         If the judge concludes that the landlord is entitled to possession of the property and the ten-day window passes without a notice of appeal being filed, the landlord may obtain an execution authorizing a sheriff or constable to serve the tenant with forty-eight hours' notice of eviction. G. L. c. 239, §§ 3, 5 (a.) . Once these forty-eight hours have expired, a tenant and his or her possessions may be physically removed from the property. G. L. c. 239, § 3. A residential defendant, however, may apply for up to a six-month stay of execution where the tenancy was terminated without fault and the termination was not based on the tenant's failure to pay rent.[10] See G. L. c. 239, §§ 9-10.

         The complexity of a summary process eviction is exacerbated by the web of applicable statutes and rules. While the Uniform Summary Process Rules aim to outline each step of an eviction action, see Rules 1-13 of the Uniform Summary Process Rules, a litigant must consider a variety of other rules and statutes in order to comprehend the full scope of the process. For instance, the substance of summary process eviction actions --as well as various procedural details not addressed in the Uniform Summary Process Rules -- are governed by G. L. c. 239. And aspects of the process not specifically addressed by the Uniform Summary Process Rules are governed by the Massachusetts Rules of Civil Procedure, insofar as the latter rules "are not inconsistent with [the Uniform Summary Process Rules], with applicable statutory law or with the jurisdiction of the particular court in which they would be applied." Rule 1 of the Uniform Summary Process Rules (1980). Where a tenant seeks to waive the fees and costs associated with a Housing Court eviction action, the tenant must satisfy the eligibility requirements described in G. L. c. 261, §§ 27A-27G. The various rules and statutes are not only complicated, but at times overlapping. See, e.g., G. L. c. 261, § 27A (describing appeal bonds as "extra fees and costs"); G. L. c. 239, § 5 (describing appeal bond requirement and waivers of appeal bond). Deciding when to apply which of these rules -- and how to resolve inconsistencies among them -- is therefore a formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.

         Based on the above timeline, fewer than seven weeks might elapse between the time that the defendant is served with a notice to quit and the time that he or she is removed from his or her residence, provided that neither party requests discovery. Even if a discovery request is filed, the process can take fewer than nine weeks. The swiftness of this process reflects the purpose of eviction proceedings -- to provide "'just, speedy, and inexpensive' resolution of summary process cases." Bank of N.Y. v. Bailey, 460 Mass. 327, 334 (2011), quoting Rule 1 of the Uniform Summary Process Rules. But it leaves little room for error. A defendant facing eviction is required to understand, in the time between compressed deadlines, the meaning of a notice to quit; the filing requirements for an answer, including those relating to defenses and counterclaims; the method for requesting and providing discovery; the workings of a trial or mediation; and the options available after a judgment has issued.

         The challenges inherent in navigating a complex and fast-moving process are compounded for those individuals who face summary process eviction without the aid and expertise of an attorney. And the vast majority of tenants in the Housing Court proceed without the benefit of counsel -- in fiscal year 2018, 92.4 percent of Housing Court summary process defendants were unrepresented. See Housing Court Department, Fiscal Year 2018 Statistics. In contrast, 70.2 percent of plaintiffs initiating summary process eviction cases in the Housing Court were represented by counsel.[11] Id. The result, in most cases, is that the landlord has an attorney who understands how to navigate the eviction process and the tenant does not.

         The Housing Court has recognized the challenges inherent in the fact that "a significant number of litigants appear in court pro se and are unfamiliar with the Uniform Rules of Summary Process." Housing Court Standing Order 1-04 (2004) . It therefore requires Housing Court judges to "apply the rules in a fair, reasonable and practical manner" and allows them to exercise their discretion to reschedule hearings and allow filings after their due date has passed. Id. The facts as alleged, however, reflect the continued difficulties that exist for unrepresented parties navigating a process characterized by complex requirements and tight deadlines.

         Legal services organizations and attorneys working pro bono have sought to mitigate these difficulties by providing unrepresented litigants with free legal assistance. The "lawyer for a day program," for example, is available to Housing Court litigants on the date of their eviction hearings. See Housing Court Standing Order 1-01 (2001). This program, which operates on a first-come, first-served basis, "seeks to address the challenge and promote the fairness of the process by allowing self-represented parties to obtain limited representation from volunteer lawyers." Cambridge St. Realty, LLC, 481 Mass. at 133. See Housing Court Standing Order 1-01. A volunteer lawyer may, for instance, assist or represent a party during mediation, answer legal questions, or even enter an appearance in a litigant's eviction case. Legal services organizations and programs, however, are severely underresourced, leaving most individuals to face summary process without legal representation. See Boston Bar Association, Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts 1 (Oct. 2014) (due to insufficient resources, Massachusetts civil legal aid programs turn away approximately two-thirds of eligible cases).

         In addition, a wealth of information on summary process evictions is available online.[12] But the intricacy and speed of the process make it difficult for a self-represented litigant to understand the available resources. It is therefore important that self-represented litigants receive assistance from court clerks and from walk-in court service centers, where "nonattorneys help people navigate the court system by assisting with forms, providing information about court procedures, and answering questions about how the court works" (quotation and citation omitted). Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 549 n.8 (2018). Currently, court service centers exist in the Worcester court house and in five other court houses across the State.[13]

         Lastly, it can be beneficial for self-represented litigants to work informally with one another and with other nonattorneys to acquire and spread information about navigating the eviction process. We acknowledge, of course, that it is unlawful for any nonattorney to engage in the unauthorized practice of law -- for instance, by signing and filing a complaint on behalf of an unrepresented litigant. See Hatcher, 479 Mass. at 549-551. But there are plenty of ways for nonattorneys to assist litigants without venturing into the unauthorized practice of law. They may, for example, "provide information to self-represented litigants to help them understand their legal rights," "assist self-represented litigants in articulating the facts that are necessary to present the litigants' claims and defenses clearly, accurately, and comprehensively," and "help self-represented litigants navigate through a legal system the litigants may not adequately understand." Id. at 549 n.8. In a complex, high-stakes process where the right to counsel is not guaranteed and professional assistance is not universally available, the assistance provided by nonattorneys may be the only way for many litigants to learn about and assert their rights.

         2. Waiver of fees and costs based on indigency.

         Under the Indigent Court Costs Law, G. L. c. 261, §§ 27A-27G, indigent parties are able to obtain waivers or reductions of various fees and costs (including, for example, filing fees, fees related to the service of process, and appeal bond costs) incurred while litigating a summary process action. See G. L. c. 261, §§ 27A, 2 7B; Reade v. Secretary of the Commonwealth, 4 72 Mass. 57 3, 57 4 (2015), cert, denied, 136 S.Ct. 1729 (2016) (describing Indigent Court Cost Law's "mechanism for indigent persons to obtain waivers or reductions of court fees and other costs") . The Indigent Court Costs Law exists to "ensur[e] that the doors of the Commonwealth's courts will not be closed to the poor." Reade, supra. The equitable and consistent application of this law is therefore critically important to safeguarding every Massachusetts litigant's ability to "obtain right and justice freely, and without being obliged to purchase it."[14] Art. 11 of the Massachusetts Declaration of Rights. The facts as alleged, however, demonstrate the various challenges presented by the fee and cost waiver application process. We seek to clarify this process here.

         a. Determining whether an applicant is indigent.

         An individual is eligible for a fee waiver based on indigency only if one or more of the following applies: (1) the individual receives public assistance under the Massachusetts transitional aid to families with dependent children program, the Massachusetts emergency aid to elderly, disabled and children program, the Federal supplemental security income program, the Massachusetts MassHealth program (formerly, Medicaid), or veterans benefits programs; (2) the individual's income, after taxes, does not exceed 125 percent of the current Federal poverty line;[15] or (3) the individual is unable to pay the court fees or costs without depriving him or herself (or those dependent on him or her) of the "necessities of life," including food, shelter, and clothing. G. L. c. 261, § 27A.

         To apply for a fee waiver based on indigency, the landlord or tenant must file an affidavit of indigency demonstrating that he or she satisfies one or more of the above requirements.[16]G. L. c. 261, §§ 27B, 27C. Unless otherwise stated in a court order, all information submitted in an affidavit of indigency is confidential and may not be accessed by anyone other than authorized court personnel, the applicant, the applicant's attorney, or a representative with written consent from the applicant. See Reade, 472 Mass. at 574 n.2; Instructions to Courts on the Administration of the Indigent Court Costs Law 2 (2003). If the affidavit "appears regular and complete on its face," indicates that the affiant is indigent as defined above, and requests a waiver of "normal fees and costs," the clerk "shall grant such request forthwith without hearing and without the necessity of appearance of any party or counsel."[17] G. L. c. 261, § 27C (2).

         If, however, the affidavit is not regular and complete on its face, [18] does not adequately demonstrate that the applicant is indigent under § 27A, or seeks "extra" fees and costs, described infra, "the clerk or register shall forthwith bring the affidavit to the attention of the justice or judge." G. L. c. 261, § 27C (3). See Reade, 472 Mass. at 577 (waiver of extra fees and costs must be approved by judge). Where no "extra" fees or costs are sought, this court's "Instructions to Courts on the Administration of the Indigent Court Costs Law" directs clerks to refer an affidavit to a justice or judge "where there is a 'significant question about whether the applicant is indigent.'" Reade, supra at 585, quoting Instructions to Courts on the Administration of the Indigent Court Costs Law, supra at 2. In determining whether a "significant question" warranting a judge's review exists, the clerk may consider the applicant's affidavit "as a whole," as well as any prior affidavits submitted to the court by the applicant. Reade, supra, citing Roe v. Rosencratz, 71 Mass.App.Ct. 901, 903 (2007). If the clerk has serious reason to doubt the applicant's indigency under the statute, the clerk should transfer the affidavit to a judge for consideration. See Reade, supra at 585-586.

         After an affidavit is referred to a judge, the judge has two options: grant the waiver request without hearing or schedule a hearing to determine the applicant's eligibility for a waiver. See G. L. c. 261, § 27C (3)-(4) (court may not deny request for waiver based on indigency without first holding hearing). Where a judge decides that a hearing is necessary to determine the applicant's eligibility for a waiver of costs and fees, such hearing must take place within five days. G. L. c. 261, § 27C (3).

         If, at the hearing, the judge determines that there is a "serious question as to the affiant's indigency," the judge "shall consider the following facts with respect to the applicant as of the time of hearing, in the immediate past and with respect to the immediate future[:] his [or her] age, education, training, physical and mental ability and number of dependents; gross and net income; regular and extraordinary expense, if any; assets and liabilities; whether or not he [or she] is a recipient of public assistance and for what purposes; and any other facts which are relevant to the applicant's ability to pay court costs." Id. The judge shall then issue a decision allowing or denying the applicant's waiver application.

         If the court denies a party's request to waive or reduce fees and costs, the applicant may appeal from this decision to a single justice of the Appeals Court (if the matter arose in the Superior Court or Housing Court) or to the Appellate Division (if the matter arose in the District Court or Boston Municipal Court). See G. L. c. 261, § 27D. An applicant has seven days to file a notice of appeal. Id. Once the judge who denied the waiver application is notified that the applicant has chosen to appeal from the decision, the judge must -- within three days --set forth his or her written findings and reasons justifying the denial. G. L. c. 261, §§ 27C (4), 27D. These findings must then be forwarded, along with the affidavit and request, to the court deciding the applicant's appeal. Id. Once the appellate court renders its decision on the fee waiver request, that decision is final under G. L. c. 261, § 27D. See Hunt v. Appeals Court, 444 Mass. 460, 463 n.2 (2005).

         We urge judges to be mindful of the confidential nature of affidavits of indigency when conducting such hearings, and to avoid revealing sensitive information regarding a party's indigency whenever possible. We also urge judges presiding over a summary process case to make every effort to issue a decision regarding an applicant's indigency as quickly as practicable. See G. L. c. 261, § 27C (2)-(3) (regular requests shall be granted by clerk "forthwith"; applications raising significant questions about indigency or requesting extra costs shall be brought to attention of judge "forthwith"). Where, because of a delay in the indigency determination, a Housing Court clerk or judge is unable to provide an indigent applicant with relevant documents, services, or objects in time for the applicant to review them in advance of an upcoming court appearance, we encourage Housing Court judges to exercise their discretion to postpone hearings as needed to ensure that all parties have sufficient time to prepare. See Housing Court Standing Order 1-04 ("Housing Court judges may reschedule hearings in the exercise of their sound discretion").

         b. Process for waiving the cost of an audio recording.

         If the court, with or without a hearing, finds that the applicant is indigent, it may not deny a request for "normal fees and costs." G. L. c. 261, § 27C (4). The court also may not deny an indigent applicant's request for "extra fees and costs" if it finds that the "document, service or object is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he [or she] would have if he [or she] were financially able to pay." Id. It is therefore necessary, in evaluating an applicant's rights to a fee waiver, to distinguish between "normal" and "extra" fees and costs. The relevant statute, G. L. c. 261, § 27A, provides guidance, [19] but does not explicitly address the question raised by the facts alleged in this case: whether the cost of obtaining an audio recording of prior trial court proceedings -- $50.50 for a compact disc or ten dollars for an online download -- should be considered "normal" or extra."

         We agree with the Housing Court that the cost of an audio recording is technically an "extra cost" under G. L. c. 261, § 27A. This conclusion is in keeping with the established practice of our other trial courts, the text of the indigency affidavit form, and the examples of "extra costs" provided for by statute. Although the Housing Court has no rule or standing order addressing whether the cost of audio recordings is "normal" or "extra," the approach adopted by other Massachusetts trial courts is instructive. The Superior Court and the District Court, which also have jurisdiction over eviction actions, consider the cost of an audio recording to be an "extra cost" under G. L. c. 261, § 27A.[20] See Superior Court Standing Order 2-87 (1988); Rule 211 of the Special Rules of the District Courts (1989). We see no reason for the recordings to be characterized differently in the Housing Court. Furthermore, the affidavit of indigency form approved by this court lists "[c]assette copies of tape recording of trial or other proceeding, needed to prepare appeal for applicant not represented by Committee for Public Counsel Services" under Section 3 as "extra fees and costs."[21] Finally, our conclusion that the cost of audio recordings is an "extra cost" is supported by the fact that G. L. c. 261, § 27A, lists the cost of appeal bonds among "extra fees and costs." As further described in the Appendix, infra, a tenant wishing to appeal from a court's summary process decision is required to supply the trial court with an appeal bond to be paid to the landlord should the landlord prevail on appeal, unless the cost of that appeal bond is waived. See G. L. c. 239, ยง 5 (c), ...

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