Opinion
16-P-1238
08-07-2017
Annie GRIFFIN v. BOSTON HOUSING AUTHORITY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Annie Griffin receives tenant-based housing benefits through the Federal Section 8 program administered locally by the Boston Housing Authority (BHA). Based on her alleged participation in an armed robbery of a convenience store and possession of unlawful ammunition in her subsidized apartment, the BHA commenced subsidy termination proceedings. A BHA hearing officer upheld the proposed termination, a decision affirmed by a judge of the Boston Housing Court on certiorari review. See G. L. c. 249, § 4. The narrow issue presented in this appeal is the propriety of a postjudgment order requiring the BHA to continue making subsidy payments pending appeal of the termination decision. See Mass.R.A.P. 6(a), as appearing in 454 Mass. 1601 (2009).
At the time of the proceedings before the motion judge, Griffin was a single mother who resided with her disabled teenaged son and infant in a subsidized apartment in Dorchester. Under the Section 8 program, the family pays thirty percent of its adjusted monthly income to the unit owner in satisfaction of its rent obligation and the subsidy covers the remainder of the rent. See Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. 103, 103 n.2 (2006).
Applications for postjudgment injunctions pending appeal are subject to the same standards as those for preliminary injunctions. See C.E. v. J.E., 472 Mass. 1016, 1017 (2015). Accordingly, the moving party must ordinarily make three showings to obtain an injunction: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm if the injunction is denied; and (3) the risk of irreparable harm to the moving party outweighs any similar risk of harm to the opposing party. See Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164 (2011). Where the moving party's irreparable harm is great, "the court may order an injunction on a showing of a ‘substantial possibility’ rather than a ‘likelihood’ of success on the merits." Wilson v. Commissioner of TransitionalAssistance, 441 Mass. 846, 860 n.12 (2004), citing PackagingIndus. Group, Inc. v. Cheney, 380 Mass. 609, 617 n.12 (1980). On the limited record presented, we discern no abuse of discretion in the ruling. Packaging Indus. Group, 380 Mass. at 615 ; Doe v. Superintendent of Schs. of Weston, 461 Mass. at 164.
To start, we note that our review of the ruling is hampered by the state of the record before us, which lacks both a transcript and documents such as the police incident report and related supplements that were available to the motion judge at the time she assessed Griffin's chances of success in the underlying appeal.
The BHA did not provide this court with a transcript of the hearing on Griffin's motion to continue the subsidy payments at which the relevant factors were presumably discussed. Lacking any transcripts, we are unable to evaluate the BHA's waiver arguments.
To the extent that the BHA seeks remand based on the lack of an explanation for the injunction, no findings of fact and rulings of law were required. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at 612 n.6. We presume that the experienced Housing Court judge was familiar with the well-known standard governing injunctive relief. See id. at 616-618.
In assessing whether the motion judge abused her discretion by granting the request for injunctive relief, we consider the same factors as the motion judge. See Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 25-26 (1981). An appellate court "will not reverse if there is a supportable basis for the [trial] court's action even if, on final analysis, it may prove to be mistaken." Lawless-Mawhinney Motors, Inc. v. Mawhinney, 21 Mass. App. Ct. 738, 743 (1986), quoting from New EnglandPatriots Football Club, Inc. v. University of Colo., 592 F.2d 1196, 1200 (1st Cir. 1979). Although we may reverse erroneous conclusions of law, we may not "substitute our judgment for that of the trial court ...." Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. at 26.
The BHA concedes that if Griffin's subsidy is terminated, she could not pay her rent and would face eviction and homelessness. In other words, after appropriate process, Griffin likely would be homeless with a disabled child and a toddler. That showing of irreparable harm was extremely strong because if Griffin succeeds in her underlying appeal, no court-ordered relief could undo the harm. Accordingly, at oral argument, the BHA conceded that the likelihood of irreparable harm to Griffin outweighed the harm to the BHA and weighed in favor of Griffin and the grant of the injunction.
We also cannot say that the motion judge abused her discretion in concluding that Griffin established at least a substantial possibility of success on the merits. Griffin raises serious substantive challenges on the merits of her case. The BHA hearing officer found two grounds warranting termination of Griffin's subsidy: (1) Griffin engaged in violent criminal activity by acting as an accomplice, and (2) Griffin committed a "serious or repeated violation of the lease by failing to refrain from or cause her guests to refrain from engaging in illegal or criminal activity" in the unit (i.e., the unlawful possession of ammunition). The motion judge addressed only the second ground, the ammunition in the apartment, and we limit our review accordingly.
We express no opinion on the merits of these questions.
The hearing officer rejected the BHA's third proposed basis for the termination, finding that there was no threat to the immediate neighborhood posed by the presence of the ammunition in the subsidized unit.
With regard to the first basis of termination, the hearing officer found that the BHA's evidence was sufficiently reliable to establish that Griffin provided transportation in furtherance of an armed robbery. The BHA produced no live witnesses, resting its case on a Boston housing police incident report and five "supplements." The incident report summarized, in relevant part, two interviews with the store cashier, as well as police interpretations of what they had observed on two security videotapes (one of the store and one from an address of unclear nexus to the store). Griffin's brief highlights numerous flaws in the police report. See Costa v. Fall River Hous. Authy., 453 Mass. 614, 628 (2009). She raises a serious question about whether the first basis for the hearing officer's decision was supported by substantial evidence. See id. at 626 ("Reliance on hearsay that is anonymous, uncorroborated, or contradicted by other evidence will create particular risk of error").
With regard to the second basis, in upholding the BHA's planned termination of the subsidy, the Housing Court judge ultimately concluded that the findings regarding the presence of the ammunition supported termination because Griffin was "responsible for the acts of her household members, visitors, guests, or anyone in the unit under her control." Griffin's challenge to this conclusion is worthy of consideration by a panel for several reasons. The judge did not address the lack of findings underpinning this conclusion. See Wojcik v. LynnHous. Authy., 66 Mass. App. Ct. 103, 110-112 (2006) (principles of due process require hearing officer to make findings of fact on all relevant circumstances). The hearing officer made no finding that an individual for whom Griffin was responsible placed the ammunition in the apartment. Compare Figgs v. BostonHous. Authy., 469 Mass. 354, 359 & n.10 (2014) (termination for a serious lease violation proper where tenant admitted that her brother had permission to go to her apartment, and thus was under her control when he engaged in the criminal activities). Moreover, Griffin's undisputed lack of control over the apartment while she was in custody raises a substantial question regarding any finding that Griffin herself or someone over whom she had control had engaged in the illegal or criminal activity of unlawful possession.
There was no evidence that would explain who might have brought the ammunition into the apartment or how long it was present. Griffin denied all knowledge of its presence and disputed the charge of unlawful possession of ammunition brought against her. She testified not only that was she under arrest during the execution of the search warrant that led to the discovery of the ammunition, but also that she was held in custody for a week thereafter, and that the police confiscated the keys to her apartment and never returned them.
Griffin also raises an argument about whether the possession of ammunition qualified as a "serious and repeated" lease violation warranting the termination of the subsidy. There was no evidence of other incidents of criminal activity in the apartment in her seven years as a tenant. The landlord has taken no action to evict Griffin. No firearm was found in the apartment. In fact, the hearing officer found that the possession of the ammunition did not constitute other criminal activity that threatened the health, safety, or right to peaceful enjoyment of other residents in the immediate vicinity. See Costa v. Fall River Hous. Authy., 453 Mass. at 630 & n.22.
Perhaps most significant, Griffin also raises a challenge to whether the hearing officer's mitigation analysis complied with principles of law discussed in Carter v. Lynn Hous. Authy., 450 Mass. 626, 635-637 (2008). A tenant opposing termination has the right to have the hearing officer weigh relevant evidence that might lead him away from termination. See Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. at 112. A refusal to exercise discretion with respect to the mitigating circumstances would amount to an abuse of discretion or error of law. See Carter v. Lynn Hous. Authy., 450 Mass. at 635 and cases cited. Language in the decision strongly suggested that the hearing officer would never exercise his discretion to impose a less severe sanction.
The hearing officer indicated that the "[f]ailure to uphold termination based on the mitigating circumstances in this case would be tantamount to accepting [Griffin]'s defense without any evidence to support it and thereby find her wholly free of responsibility for what the reliable evidence shows occurred."
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Finally, the hearing officer's factual determinations must be based on a preponderance of the evidence presented at the hearing. See Costa v. Fall River Hous. Authy., 453 Mass. 614, 629 (2009) ; Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. at 110-112. The hearing officer acknowledged this principle in his decision. Yet, in finding that termination was warranted, the hearing officer relied on the absence of "objective facts" that would "show that future violations are unlikely to occur." The imposition of this requirement upon Griffin, who was not represented by counsel, further called into question the fairness of the procedure. See Carter v. Lynn Hous. Authy., 450 Mass. at 638.
The order requiring the BHA to continue making subsidy payments pending the outcome of the underlying appeal is affirmed.
So ordered.
Affirmed.