Opinion
No. 11–P–1076.
2012-09-11
SAFE HAVEN SOBER HOUSES, LLC, & others v. William GOOD & others.
By the Court (COHEN, GREEN & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this civil action, the plaintiffs, Safe Haven Sober Houses, LLC (Safe Haven), and its owners and operators, David Fromm and David Perry, allege that, in response to political and community pressure, defendant William Good, the commissioner of the city of Boston inspectional services department (ISD), violated their constitutional and statutory rights and committed intentionally tortious acts in an effort to curtail their operation of so-called “sober homes” in Boston's Roxbury neighborhood.
Claiming that he is entitled to judgment as matter of law on the basis of qualified and common-law immunity, Good brings this interlocutory appeal from the denial of his motion for summary judgment.
As described in a recent report prepared by the Department of Public Health, bureau of substance abuse services, in response to St.2010, c.283, § 10, sober housing, also referred to as alcohol—and drug-free (ADF) housing, is a form of group housing that offers an alcohol—and drug-free living environment for individuals recovering from alcohol addiction or substance use disorders. See Study Regarding Sober (Alcohol and Drug Free) Housing in Response to Chapter 283, Section 10, of the Acts of 2010 1 (2012). The structure of sober homes varies widely, as they are established by individual operators or funders. Id. at 3. The sober homes at issue in this case provided unlicensed congregate housing for recovering alcoholics and drug addicts in single-family dwellings. No form of counselling or treatment was offered or required of residents. Residents were subject to random drug and alcohol testing, and paid a weekly rent of between $140 and $160.
We affirm. Procedural status. In the present posture of the case, there are five live claims against Good: violation of the Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601 et seq.; violation of 42 U.S.C. § 1983; violation of G.L. c.40A, § 3; interference with contractual or advantageous business relations; and civil conspiracy to commit tortious conduct. As to the first three claims, Good argues that he is entitled to qualified immunity. As to the latter two, Good argues that he is entitled to common-law immunity.
Good is entitled to interlocutory review of the ruling on his immunity defenses under the doctrine of present execution. See Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 97–98 (2011).
Our review of Good's appellate arguments, however, is greatly hampered by inadequacies in the appellate record. Most significantly, Good has failed to include his motion for summary judgment in the joint appendix or joint supplemental appendix.
“An appellant's obligation to include ... copies of motions ‘which are essential for review of the issues raised on appeal ... is a fundamental and long-standing rule of appellate civil practice.’ “ Cameron v. Carelli, 39 Mass.App.Ct. 81, 84 (1995), quoting from Shawmut Community Bank, N.A. v. Zagami, 30 Mass.App.Ct. 371, 372–373 (1991), S. C., 411 Mass. 807 (1992). Without Good's motion (or his supporting memorandum), we are left “in ignorance of which, if any, of the contentions now urged by [Good] were raised by [his] motion[ ]. ‘[W]e see no occasion to send for the original papers in order to discover whether there is any merit to ... [Good's] contentions.’ “ O'Neill v. First Ipswich Co., 5 Mass.App.Ct. 820, 820–821 (1977), quoting from Slater v. Burnham Corp., 4 Mass.App.Ct. 791, 791 (1976). Nevertheless, in an effort to provide some guidance for further proceedings, we address Good's appellate arguments to the extent that the judge's decision reflects that they were raised below.
Other pertinent documents also are omitted. Additionally, the arrangement and identification of materials in the appendix and the joint supplemental appendix are noncompliant with Mass.R.A.P. 18(d), as amended, 370 Mass. 919 (1967).
We may infer from the judge's decision that Good argued qualified immunity as a defense to the FHAA claim, at least with respect to the plaintiffs' claim of intentional discrimination/disparate treatment. We cannot infer from the judge's decision that Good argued qualified immunity in the context of the § 1983 claim, as the decision refers only to Good's argument of lack of causation. Nor can we infer from the judge's decision that Good argued qualified immunity with respect to the plaintiffs' claim under G.L.c. 40A, § 3. The judge denied Good's motion as to that claim “for the same reasons his Motion to Dismiss this Count is denied.” Because the record does not contain the judge's decision on the motion to dismiss, or, for that matter, the motion to dismiss itself, we are unable to ascertain the judge's rationale and to perform meaningful review of his ruling. With respect to Good's assertion of common-law immunity from the intentional tort claims, while it is not clear from the judge's decision which arguments were made below, we infer that the issue of common-law immunity was raised in some form.
2. Qualified immunity: FHAA disparate treatment claim. Qualified immunity shields government officials performing discretionary functions
from civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant moves for summary judgment based on the doctrine of qualified immunity, the court reviews the facts in the light most favorable to the plaintiff. Febus–Rodriguez v. Betancourt–Lebron, 14 F.3d 87, 89 (1st Cir.1994). Once immunity has been invoked, the burden of overcoming the immunity rests upon the plaintiff. See Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 104 (2011).
Discretionary functions are broadly construed in the context of qualified immunity. See Foster v. McGrail, 844 F.Supp. 16, 23 (D.Mass.1994). They include not only high-level formulations of directives but also lower-level discretionary decisions in the administration and enforcement of directives. Ibid. The conduct in question here falls comfortably within the ambit of discretionary functions.
The relevant inquiry is “whether a reasonable official could have believed his actions were lawful in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct.” Ahearn v. Vose, 64 Mass.App.Ct. 403, 413 (2005), quoting from Febus–Rodriguez, supra at 91. “Courts analyzing this defense must inquire, in the following order: ‘(1) whether the facts as alleged make out a constitutional [or statutory] violation; (2) whether that right was clearly established; and (3) whether a similarly situated reasonable official would have understood that [his] conduct violated clearly established law.’ “ Ibid., quoting from Masonoff v. DuBois, 336 F.Supp.2d 54, 57 (D.Mass.2004).
After performing this analysis, we conclude that it was not error to deny Good's motion for summary judgment on the plaintiffs' FHAA intentional discrimination claim.
a. Violation of the FHAA. The FHAA prohibits discriminatory housing practices based on a person's handicap. 42 U.S.C. § 3604(f)(1)-(2) (2006).
Individuals in recovery from drug or alcohol addiction, as well as owners of group homes for recovering addicts, are protected under the FHAA. Edmonds v. Oxford House, Inc., 514 U.S. 725, 728–729 (1995). To succeed on a claim alleging violation of the FHAA, a plaintiff must demonstrate that some discriminatory purpose was a “motivating factor” behind the challenged action. Community Servs., Inc. v. Wind Gap Mun. Authy., 421 F.3d 170, 177 (3d Cir.2005). Community Hous. Trust v. Department of Consumer & Regulatory Affairs, 257 F.Supp.2d 208, 225 (D.D.C.2003).
The statute provides in relevant part: “[I]t shall be unlawful ... [t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap ... [or t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap.”
A plaintiff may establish discriminatory intent through direct or circumstantial evidence, or by making a prima facie case of discrimination under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–803 (1973). See also South Middlesex Opportunity Council, Inc. v. Framingham, 752 F.Supp.2d 85, 95 (D.Mass.2010). The discriminatory purpose need not be malicious, nor need it figure solely, primarily, or even predominantly into the motivation behind the challenged action. Community Hous. Trust, supra. A prima facie case of intentional discrimination under the FHAA may be established merely through a showing that “a protected characteristic played a role in the defendant's decision to treat [the plaintiff] differently.” Ibid. Factors to be considered in evaluating a claim of intentional discrimination include the discriminatory impact of the decision, the background and specific sequence of events leading up to the challenged decision, and departures from normal procedures and criteria. Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 267 (1977). See Macone v. Wakefield, 277 F.3d 1, 6 (1st Cir.2002). Response to community pressure may support a finding that discriminatory animus motivated a defendant in enforcement or regulation efforts. See South Middlesex Opportunity Council, Inc., supra at 98–99. “[I]f an official act is performed simply in order to appease the discriminatory viewpoints of private parties, that act itself becomes tainted with discriminatory intent even if the decisionmaker personally has no strong views on the matter.” Association of Relatives & Friends of AIDS Patients v. Regulations & Permits Admn., 740 F.Supp. 95, 104 (D. Puerto Rico 1990).
The record in this case, viewed in the light most favorable to the plaintiffs, contains facts sufficient to make out a claim of intentional discrimination on the basis of handicap in violation of the FHAA. There is evidence to support the conclusion that Good took actions against Safe Haven due (at least in part) to intense pressure from neighbors and local politicians who complained about recovering addicts and alcoholics living in their neighborhood.
There also is evidence to support the conclusion that the actions taken against Safe Haven departed from usual ISD practice.
Good admits that he was aware of the community goal of closing the sober homes. That goal was expressed to him in correspondence and at community meetings where he was present. Former City Councillor Charles Turner, former State Senator Dianne Wilkerson, and State Representative Gloria Fox contacted Good on multiple occasions, expressing a desire to remove Safe Haven from the neighborhood. That Good acted in response to this pressure may be inferred, inter alia, from his updates to Turner on the status of ISD's enforcement actions, including one update in which he credited ISD's actions with bringing about a reduction in the number of sober homes and their occupants.
Even though Good characterizes both his communications with concerned citizens and ISD's enforcement actions as routine, and denies any discriminatory intent, the plaintiffs have made a sufficient showing to create a triable issue as to intentional discrimination in violation of the FHAA.
The plaintiffs rely, for example, upon evidence that ISD building inspectors were accompanied by a newspaper reporter and a photographer when conducting building inspections of Safe Haven properties, that ISD took the unusual step of obtaining warrants to conduct inspections of Safe Haven residences for code violations, and that ISD demanded that Safe Haven obtain permits that were inapplicable in the circumstances.
b. Clearly established rights. For a right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ...; but ... in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Whether an asserted federal right was clearly established at a particular time” presents a question of law for the court. Ahearn, 64 Mass.App.Ct. at 421, quoting from Elder v. Holloway, 510 U.S. 510, 516 (1994).
We conclude that, by 2007, it was clearly established that recovering addicts were members of a legally protected class of handicapped individuals, see Edmonds, 514 U.S. at 728–729, and that intentional discrimination against group housing for handicapped individuals violated the FHAA. Prohibitions against handicap discrimination in housing had been in existence since 1988, when they were added to the Fair Housing Act by the FHAA. Pub.L. No. 100–430, 102 Stat. 1619 (1988). The plain language of the FHAA unmistakably instructs that it is illegal to discriminate intentionally on the basis of handicap. See Gonzalez v. Lee County Hous. Authy., 161 F.3d 1290, 1302 (11th Cir.1998).
Furthermore, for years prior to the events at issue in this case, Federal courts had been finding that municipalities were in violation of the FHAA when attempting to prevent groups of recovering addicts from living in homes zoned for single-family use, even if the number of residents exceeded the number of unrelated people that normally would be permitted to live together under the local zoning ordinance. See, e.g., Oxford House–Evergreen v. Plainfield, 769 F.Supp. 1329, 1343–1344 (D.N.J.1991); Oxford House, Inc. v. Cherry Hill, 799 F.Supp. 450, 458 (D.N.J.1992); Oxford House, Inc. v. Babylon, 819 F.Supp. 1179, 1183 (E.D.N.Y.1993). Courts also had concluded that enforcement of neutral regulations with the purpose of targeting handicapped individuals constituted an FHAA violation, see United States v. Puerto Rico, 764 F.Supp. 220, 224 (D. Puerto Rico 1991); People Helpers, Inc. v. Richmond, 789 F.Supp. 725, 732 (E.D.Va.1992), and that if an otherwise neutral act was performed by a public official in order to appease opponents of residences for the handicapped, that act could be considered as evidence of discriminatory intent. See Association of Relatives & Friends of AIDS Patients, 740 F.Supp. at 104;Community Servs., Inc. v. Heidelberg Township, 439 F.Supp.2d 380, 396–397 (M.D.Pa.2006).
Notably, in 1997, in a case that could not have been closer to home, a judge of the Massachusetts Superior Court, citing Federal cases, ruled that the denial by ISD and the Boston zoning board of appeal of occupancy permits to Granada House, Inc., an operator of group residences for recovering substance abusers, was unlawful under the FHAA. Granada House, Inc. vs. Boston, Suffolk Sup.Ct., No. 96–6624–E, slip op. at 5–8 (February 28, 1997).
This case did not result in an appellate decision.
c. Reasonable official's understanding. If credited, evidence in the summary judgment record, including evidence that discriminatory enforcement continued even after the plaintiffs gave notice that ISD was acting in violation of Federal housing law, supports the conclusion that a reasonable official situated similarly to Good would have understood that his actions violated the FHAA. Further support for this conclusion may be found in the experience of ISD and the city of Boston with Granada House, Inc., even assuming that the case predated Good's tenure as commissioner. See ibid.
3. Common-law immunity: intentional tort claims. A public official engaging in discretionary conduct is not liable for negligence or other error in the making of an official decision if the official acted “in good faith, without malice and without corruption.” Gildea v. Ellershaw, 363 Mass. 800, 820 (1973). “There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.” Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 294 (1980). However, if the plaintiffs have proffered evidence “ ‘from which a jury could infer that [Good] acted in bad faith or with malice,’ [Good] consequently [is] not shielded from liability.” Cachopa v. Stoughton, 72 Mass.App.Ct. 657, 665 (2008), quoting from Nelson v. Salem State College, 446 Mass. 525, 538 (2006). See Tobin v. Goggins, 17 Mass.App.Ct. 996, 996–997 (1984).
Here, there is evidence to support the conclusions that Good's actions were done with the intent to discriminate against the plaintiffs and to force Safe Haven out of Roxbury, that Good was aware that the plaintiffs claimed that they were experiencing discrimination but took no action to determine whether they were entitled to the protection of State and Federal antidiscrimination law, and that he bore responsibility for unusual and unjustified actions by ISD in furtherance of the goal of removing Safe Haven from the community. This evidence, if credited, would support a finding that Good acted in bad faith or with malice. Accordingly, Good was not entitled to summary judgment on the plaintiffs' intentional tort claims on the ground of common-law immunity.
While we conclude that Good is not entitled to appellate relief, we decline to exercise our discretion to award the plaintiffs appellate attorney's fees pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979).
Order denying motion for summary judgment affirmed.