-: SJC-13286, Jason Dacey v Sandy Burgess.
-: Okay, Attorney Collier.
-: Chief Justice, Justices.
Mr. Dacey, a disabled father of three,
walked into housing court seeking a restraining order
for repair of conditions in his property.
Instead of a judicial hearing, he was steered into mediation
and he left that courthouse that day evicted.
The housing courts enforced-
-: He didn't leave it evicted.
He left it with how many, what did he leave with?
He left with a free month.
And how many years of, or how many months?
What are the facts?
-: The facts are that the execution
couldn't issue until that summer.
Not years, Your Honor, that summer.
And then, of course- -: It didn't issue that summer,
he got it- -: The COVID-
-: Didn't issue that summer.
It was to stay for another year.
-: Yes, but that was not as a result
of the court's order or of the eviction.
That was as a result of the COVID stay, Your Honor.
What he walked out with that day
was an order that permitted his eviction,
despite the language in the agreement
that said only that he would be leaving voluntarily.
But regardless, Your Honors, that decision
and the housing court's enforcement of it
violated the straight up statute that says-
-: Can I ask a question?
I just want to try to pin this down.
So you're a landlord and you have a tenant.
The tenant's not paying.
You like the tenant, you work out a deal.
Just between yourselves, you work out a deal.
I'm gonna let you stay two more, three more months,
and then you're gonna leave.
And the tenant says, great.
And they actually write that down
and then the tenant changes his mind five months later.
Is that also unenforceable?
Collier: Your Honor, it may be enforceable
in a summary judgment case.
-: But the only-
Collier: It's not enforceable in a sanitary
code enforcement. -: So you'd have to,
so even if he leaves the property voluntarily,
enters into agreement and walks away,
as this happens a lot out there,
that thing is totally unenforceable,
you just have to use a summary,
you gotta start over in a summary process, is that your?
I'm just trying to understand
what is not allowed anymore or what is.
-: What the legislature said is not allowed, Your Honor,
is that no person-
Kafker: But could you answer my question though?
-: Yes. -: If you voluntarily
work out a deal to leave an apartment
and you both agree to that deal and walk away from it,
and then you change your mind three or four months later,
was that an illegal deal in your view?
Does it have no legal consequence?
-: Your Honor, I thought I answered.
No person shall attempt to recover possession
other than through a summary process action.
It does have legal consequence.
You can seek to enforce that agreement
through a summary process action,
or in the language of a statute,
another proceeding authorized by law
for the recovery of possession.
-: So all these voluntary arrangements out there
to end leases, to walk away, work out your deals,
they're all totally extralegal in your view?
I'm just trying to get a sense of the scope of this,
of what you're asking.
Is that right?
-: No, Your Honor, that's not what I'm arguing.
I'm saying that those are legal agreements, Your Honor,
just as anytime you sign a lease and it expires,
it's a legal agreement that the tenant will move.
But you don't get to just move them out at that point.
To enforce that legal agreement-
-: What if they left? -: You must bring
a separate process action. -: What if they left?
If they left on their own and then changed their mind,
was that still improper?
-: Once they've surrendered possession?
Of course not, Your Honor,
once you surrender possession- -: That's okay.
-: You surrender possession.
You don't have a right to go back
and say, you have to evict me,
because you couldn't be evicted at that point.
You no longer have possession, Your Honor,
in the language of this court in Hatcher.
-: Okay, so at least we're not undermining all of that.
Once you've left, we don't have to worry about this.
I'm just trying to understand.
-: Exactly, Your Honor.
Voluntary agreements that the parties perform
are perfectly legal in any context,
including in possession of premises.
-: So as soon as that person walks out,
they've lost the ability to use the summary process process.
-: Because they don't have possession, Your Honor.
That's exactly right. -: Okay.
For summary process rights to accrue,
there has to be an action to recover possession.
-: Okay. -: Once a landlord
has recovered possession,
the landlord doesn't have to do anything.
-: Okay. -: They now hold the property
pursuant to real property law
and the agreement has been performed.
It's done, there is no further question.
But, Your Honor, I think what's important here
is what the legislature said
because the legislature has decided this case.
The legislature said-
Georges: You say that, but it's premised on your belief
that the only way to recover possession
is through a summary process action.
-: No I'm not.
-: Well, if it's not, why isn't it okay
that they go to mediation on your client's petition?
They go to a housing court specialist, they go,
and he got some benefit for it,
because wasn't there some number of months
where he was allowed to remain in possession
without having to pay any rent?
-: Your Honor, there was a single month's rent waived.
But, Your Honor, summary process law
entitled this disabled person to a year's stay,
eviction law entitled him to defenses,
to access to Tenancy Preservation Project
for a mentally ill person.
Budd: Not free though, right?
-: Sorry?
-: Not stay without having to pay.
-: No, but this tenant never didn't pay his rent, Your Honor.
-: But didn't you say he didn't wanna pay the increase?
That was why this whole thing started?
-: But not paying an increase is different
from not paying the rent, Your Honor.
-: I understand. -: If a tenant doesn't consent
to an increase, the rent doesn't go up.
So for that period of a year,
he would've gone on lawfully paying the contract rent
and that would've been legal.
But more importantly, Your Honor,
he would've had access to all the services
that are available in the housing court
to preserve tenancies
and to preserve the tenancies of disabled persons.
-: And are you saying you you can't waive those,
that the tenant can't waive those in any?
-: The tenant cannot waive those.
And the legislature has said that.
The legislature in saying no person
shall attempt to recover possession
in any manner other than through a summary process action
or another action authorized by law
for the recovery of possession.
-: That's the last part, which isn't so clear, right,
or any other action authorized by law?
That's why we're here.
-: So, Your Honor, the argument that was made below
is that if there's a case, you can get possession.
-: Well, remember, you chose the forum,
not you, but your client went into the other forum, right.
It wasn't like he surreptitiously
brought you into a different court.
You brought, your client brought the other action, right.
And then the court ordered mediation, right.
But again, you chose the forum and you agreed to the deal.
Now the disability thing is complicated,
'cause I don't know, nothing was said about disability
at the initial proceeding, right.
The judge wasn't told or altered that this person
had a disability.
And by the way, doesn't the disability
also have to relate to your ability?
I mean, if I'm in a wheelchair, that doesn't matter as long
as I can get into the courthouse.
If you're arguing in a wheelchair,
you're as equally capable of arguing, right.
It has to be a disability that affects
your ability to argue, right?
-: Your Honor, this court has said with regard
to the reasonable accommodation issue two things.
First, that once the court is informed of the disability-
-: Right. -: And here, the court
was informed of the disability
before judgment entered. -: No, but the court
wasn't informed of the disability
when your client negotiated the deal, right?
-: The court was not, Your Honor,
but reasonable accommodation law literally says,
and this court has affirmed it,
that all the way through execution,
the reasonable accommodation obligation survives.
-: So he alerts the court now- -: That once you move him out,
it does not.
-: When he alerts, your client alerts,
he alerts through an affidavit that says what?
-: That says he receives Social Security Disability.
He's disabled by mental illness
including bipolar mental illness and depression.
That is-
-: And that's before the judge
in enforcing the judgment right?
-: Before the judgment is entered.
That's right, Your Honor.
Before judgment for possession is issued.
-: I'm just trying to make sure you're not subtly
answering that question.
When they go into court to enforce the mediation-
-: Yes. -: Does your client alert
to the disability issue up front
or is this something that comes up later?
When does it actually happen?
-: The first time the disability is asserted
is in response to the landlord's motion
to enforce the agreement.
So before there's any judicial ruling at all,
and Your Honor, the court's decision here
violates everything this court has said about accommodation.
-: Was there a hearing?
I can't remember, was there an actual hearing in this case?
-: There was a argument on the motions,
but there was no evidentiary hearing
or other inquiry ever conducted.
And there is remarkably,
in the face of this court's rulings
in McDonough and Adjartey,
no mention of disability in this judge's decision.
And what this court said in Adjartey and in McDonough
was that once a disability issue is presented to the court,
the court must first make inquiry into the disability.
And second, and that's this court's language,
the court must inquire into the disability,
and second, the court must make findings sufficient
to permit appellate review.
It's not just that the housing court here
didn't make findings sufficient
for appellate review, Your Honors,
there's a four page decision here
which never mentions the word disability,
which never mentions the term reasonable accommodation.
There is not a single finding or reference
anywhere in the court's decision
to the fact that Mr. Dacey was mentally ill
and walked into a mediation where the landlord
was represented with no idea of what was happening to him
and walked out believing, according to his affidavit,
that when he said he would move voluntarily,
he could not be evicted under that agreement.
Now, whatever else there is to say
about the decision below here,
you cannot say that never mentioning his disability,
never mentioning his mental health problems,
never mentioning his understanding
of voluntarily moving out constitutes factual findings
sufficient to permit appellate review.
Similarly, endorsing the landlord's use of a mediation
in a case brought to enforce
the sanitary code to recover possession
is exactly what the legislature did not agree to
when it said you can't do it in any manner
other than an action through chapter 239
or other action authorized by law.
And, Your Honors, respectfully,
-: Take a minute. -: The legislature has said.
-: Can we, sorry, excuse me, judge, excuse me.
Can we just take a minute to separate the Adjartey situation
from the subject matter jurisdiction issue just for a second
and just specifically say when it was
in this process specifically
that your client alerted the judge
to the Adjartey situation, to the disability,
when did that happen?
Collier: October of 2020 before judgment entered
in the case, Your Honor.
-: And when was the first agreement?
Collier: The agreement was March, I believe.
No, February, Your Honor.
February of, I'm wrong again, March of 2020.
-: And then it happens in October.
Is that when this- -: I misspoke, October, 2021.
Because there was a year when the
housing court couldn't
-: I'm not faulting- -: Couldn't issue evictions.
-: I'm just trying to- -: Yes.
-: I'm just trying to get at, relative to the voluntary,
the order, let's say that reflected the agreement
and taking into account when there was a one-year stay.
In that process, when is it specifically that the judge
is informed of the disability issue?
-: The judge was informed of the disability
in response to a motion brought immediately
after the COVID bar expired.
The COVID bar expired, I believe mid-September of 2021.
The landlord promptly moved for judgment and execution,
and the tenant in an affidavit and in a memorandum
in response said, "I'm mentally ill, I'm disabled.
I thought this was voluntary and it is not.
Please don't evict me.
It will render I and my children homeless."
So that was in October of 2021.
And that disability was raised before the court
at least three times in October, in January,
and later in January on the Rule 59 motion.
Adjartey was cited for the court's obligation
to inquire into, to make reasonable accommodation,
and make findings repeatedly in this process.
The court was cited over and over again
to chapter 184, section 18
saying he can't recover in any manner.
And Your Honor, the legislature has explained
that it believes in can't recover in any manner
by amending chapter 139-19,
which is the quick eviction statute,
over and over again to expand the circumstances
under which a landlord can recover possession
other than through summary process.
Used to say only for alcohol.
Then it was amended to provide
it could be used outside of summary process
for alcohol and drugs, then for firearms, then for violence,
then for public housing tenants.
So the legislature has understood its own command
in 184-18 as a limitation on the right to recover.
And the court and the legislature has again and again said,
we need to add this one to the ways you can recover
without going through summary process
because this is serious enough,
so that we're not gonna make you resort to summary process.
None of those amendments were necessary,
if a landlord could just go in on a sanitary code action
or in a small claims case and get a judgment,
sue the tenant for $50, go to small claims mediation
and get a judgment for possession.
Go in on a, this is no different than a person filing
for a domestic violence restraining order
and walking out evicted. -: But you brought it there.
They didn't bring it there.
Your client brought it there.
They didn't manipulate the process,
you took them into that process.
-: We- -: And then the question is,
can that mediator work out, you know, an agreement.
Now you've raised a separate issue
whether that mediator can work out an agreement
with someone who's disabled.
That's the third issue.
But you know, the court clearly had jurisdiction over this.
Collier: It had jurisdiction over the-
-: You brought it there.
-: It had jurisdiction over the parties, Your Honor,
it didn't have jurisdiction over the claim for possession.
This is the same as a domestic violence plaintiff
going into court for a domestic restraining order
and walking out of the domestic violence mediation
with them moving out of the property
and waiving their right to live in the family home
in response to a case that they brought
to protect themselves from domestic violence.
The case that Mr. Dacey brought to this court
was a case asking for a repair order.
It wasn't a case asking for the mediator
to adjudicate him homeless.
It wasn't a case asking for the mediator
to ignore his disabilities and move him out.
It was a case- -: Counsel, can I just go back
for a second though?
But you're not suggesting that if a plaintiff
in a civil restraining order
were granted an order of protection
that ordered the defendant to vacate the premises,
that somehow that would be unlawful
because it's not in the context
of a summary process action, right?
-: No, Your Honor, although it's my understanding
that the domestic violence restraining order process
requires vacating but does not adjudicate the claim
to possession of the family home.
Georges: Well, I mean-
-: That's gotta be done in the divorce
or in a permanent dissolution relationship.
-: Well, that's talking about maybe title,
but not possession, I mean, certainly,
but anyway, let me just go back here for a second.
There were a variety of procedural things that happened
between the time of the agreement in March of 2020
and the time that it's first raised
to the court in October of 2021.
The parties had been back and forth
a couple of times to the court,
and not at any point was the issue of any disability raised.
Why not?
-: Because, Your Honor, the tenant was in those hearings
doing what the tenant understood
the tenant was doing when it brought this case,
which it was the tenant was trying
to get repairs made, the bedbugs corrected,
the other, so the tenant- -: Sure, but there isn't
any allegation here that the tenant couldn't read
or understand the terms of the agreement.
The terms of the agreement said explicitly
that the tenant was to vacate by August of 2021.
There wasn't anything that was conditional about that
or that was somehow mysterious about that.
It said you have to leave by August of 2020.
-: Yes, voluntarily, Your Honor.
There was nothing that made
this unrepresented, mentally ill tenant
aware that he could then be evicted
if he did not move voluntarily,
we can all say maybe he should have guessed
that he was at risk of that
and done something to vacate this agreement.
Maybe a person who was not mentally ill, depressed
and still trying to deal with bedbugs
and living through the midst
of the COVID bar. -: What we're trying to do
is figure out where the Adjartey issue needs to be raised.
Again, I'm putting aside
the subject matter jurisdiction issue,
because if you're right on that,
then we don't need to address it.
But so let's say you're in the summary process session,
the tenants pro se, there's mediation,
there's an agreement for judgment,
and it's a non-payment of rent.
And in consideration of the agreement for judgment,
the landlord says that we're not gonna execute
on this for two months.
Two months passes or the day before two months passes,
and there's a injunction from the tenant
that there's an Adjartey issue and they're raising it now.
Is that okay?
-: Yes, Your Honor.
And this court, first,
this court held in Bridgewater specifically
that the tenant showing up at trial
and never having sought accommodation
before trial and judgment was timely asserting his right.
And in fact, the tenant in the Bridgewater's case,
which is this court's primary precedent
on reasonable accommodation,
never even said I want an accommodation.
He showed up and testified that he was off his medication
because his medication had been changed
and that was his entire showing.
And this court reversed the housing court
and found that he was entitled to a reasonable accommodation
and that the court's failure to do so
violated his rights under both the federal and state
anti-handicapped discrimination law.
In addition, Your Honor, decisional law is unanimous
that as long as the tenant is still in possession,
that is until the execution is actually carried out,
is levied upon, the court must consider
a request for reasonable accommodation.
This court has not weighed in on that.
But the circuit courts around the country have.
The housing court's practice is through execution,
the court will require consideration
of a reasonable accommodation.
Here, reasonable accommodation is never mentioned.
There's not a word.
Here, disability is never mentioned.
There's not a word.
If Adjartey and McDonough mean anything, Your Honor,
then they mean that where that issue is squarely presented
before the court has entered a judgment,
the court cannot enter a judgment
without the Adjartey McDonough inquiry
and the court can't enter a judgment
without making sufficient findings
to permit reasonable appellate review.
-: We're gonna have to ask you to stop now.
Thank you.
Okay, Attorney Bull.
(papers shuffling softly)
-: Good morning.
May it please record. I'm attorney Patrick Bull.
I represent the defendant in this case.
And to follow up on some of the questions you had,
the judge did in fact give him a reasonable accommodation.
When we went for the execution,
the judge specifically said,
I'm gonna give you up to a year,
but I don't give it all at once,
I give it every three months and-
Kafker: But that's different from,
the disability accommodation is a different issue, the-
-: Right.
-: Your opposing counsel says essentially this,
I mean, say we agree with you on the substance.
That they brought you to that process,
they have subject matter jurisdiction.
Their mediation can work out their differences
including him leaving the property.
But he's now arguing that Adjartey
has a clear disability notice provision.
And if you're on notice,
and he says, I notified you that I'm disabled,
when you sought to enforce the mediation,
the agreed upon mediation judgment.
Doesn't the judge have to address the fact
of whether he was competent to negotiate for himself
in this regard?
Doesn't he have to make certain findings
under Adjartey to do that?
-: I think the first step is that the plaintiff
has to articulate what his disability is.
It's like saying I'm gonna give you
a wheelchair ramp when you're dyslexic.
It's not gonna help you.
And to your point, nothing impacted his ability to argue.
-: Well, but he's, again, and I'm not a mental health expert,
I gotta reread that affidavit,
but he says he's bipolar and mentally ill, right?
-: And depression, he says,
"I'm disabled, comma, and I have bipolar and depression."
He told my client, according to her affidavit,
that he had a bad back.
That was his disability that he gets paid for, and-
-: But does the judge have to make, I mean,
can we sort this out here?
He raises issues about his mental capacities.
He may not have done it well,
but does the judge have to under Adjartey,
say, okay, he's claiming, again, various things.
I find when he went through that mediation,
he knew what he was doing and could make that.
Does he have to make those findings?
-: I will say this, the judge in this case
dealt with Mr. Dacey, there was a number of hearings
where he made findings about Mr. Dacey
'cause he says in his decision that the,
I find he wasn't coerced,
wasn't confused about what happened.
Kafker: He says that he wasn't confused?
-: I think, I don't have the judgment in front of me
but I think he said he definitely wasn't
unduly influenced or coerced, I think.
'Cause they were claiming that somehow I had tricked him
into agreeing to leave.
And just quickly he was given five months,
five and a half months where he couldn't be evicted,
by the way.
That's what the landlord gave.
That wasn't a concession by him.
It was a concession by the landlord.
-: And no one's suggesting- -: Okay.
-: The landlord's behaving inappropriately here.
But there are complications,
particularly the disability issue without findings.
I think it's, help us here if you can.
-: If I may, the Sparrow case speaks to this.
And the Sparrow case specifically mentions
that you have to give more than just an affidavit.
You have to give medical evidence to show that.
And my thing is, he was, to the point before,
this was like a year and a half later
is when he first brought it up.
So he gets the benefit of the bargain, he gets the money,
he gets the seven months where he can't be evicted.
And then when, as I said in my brief,
you get to the finish line,
and he goes, oh, by the way, I got a mental illness stop.
And it's just like you said,
you come up with all these,
you come up with an agreement
and right before execution's about the issue, I'm sorry.
-: I'm totally sympathetic
to what you're arguing- -: Right.
-: But does the judge have to confront that and address it?
That's what I'm concerned about.
Because the judge could simply say, guess what,
I found him, he knew what he was doing.
He took advantage of this and he's very clever
and I don't buy it, you know.
Then we're not here, right.
-: Right, well, I would say that I think he has to address it
or it has to be brought up
prior to entering into the agreement,
because then you, again,
you hit the nail on the head with your hypothetical,
that could happen in every single contract
that we have in the state of Massachusetts.
You get to the-
Lowy: A different answer to the question.
-: Okay. -: Let's say that
there's a tenant who has serious mental health issues
and really isn't going to understand
what's going to be happening in the mediation.
And in the mediation, there's an agreement for judgment.
The agreement for judgment,
even though there's on a non-payment right to 14 days,
there's an agreement, something significant given up,
six months at the same rent,
well, even throw in one month free.
So now it's time for the execution.
And the tenant comes in and raises the Adjartey issue
and raises it appropriately.
It's not just an affidavit.
Comes in, he's got a psychotherapist willing to testify,
he's showing the meds, it's legitimate.
That tenant really didn't understand what was going on
in that mediation.
Can you raise that issue after the judgment
on the day the execution's going to issue
under Adjartey? -: I think that would be
up to the judges.
I think it's a much stronger case than we have here.
So I would say I could see the judge using his discretion
and taking that into consideration is, okay,
I do have the evidence now.
As opposed to what you mentioned, a one line affidavit,
which appears to be carefully drafted,
if you will, 'cause his disability
that has been documented and he gets paid for
is for a bad back and a bad neck is what he told-
Lowy: The issue for us is whether or not,
it's not the timing-
-: Okay.
-: It's whether or not there was a sufficient notice
on the disability issue,
and whether or not once it was noticed,
whether or not it was grounded enough
that the judge was required to address it.
-: Counsel, can I follow up on Justice Lowy's point?
Because I see this, as I dug into it,
just maybe slightly differently than opposing counsel.
My understanding of Adjartey was it needs to be the court,
before we get to reasonable accommodation,
the court needs to make a finding of disability.
And if we look at the judge's decision in this case,
and if not explicit, implicitly saying,
I don't credit that you have a disability that,
because that's the way I was looking
at the judge's decision here,
that it was raised at the time of looking for the execution.
And the decision seems to discredit that.
-: And I think you're correct, Your Honor.
And the judge in this case, this is why it's important.
The judge in this case had met with Mr. Dacey,
has spoken with Mr. Dacey on numerous occasions.
And you can see through the court record here,
he did not find anything credible.
And actually said in one of his hearings
that we talked about the subsequent bedbugs,
he actually said to Mr. Dacey,
"I find what you're saying to me doesn't match the facts."
So he, I don't say didn't,
I think he discredited Mr. Dacey's all of a sudden, again,
we're at the finish line, I have a mental,
Adjartey, you know, a complaint here.
And I think the judge did discredit it.
And again, there wasn't an evidentiary hearing,
but there was numerous times throughout this process
where he did deal with Mr. Dacey
and spoke to him personally in the hearing.
I'd been at the hearing.
The other thing I think that was brought up,
I don't wanna change the subject, but-
-: By the way, did Mr. Dacey argue for himself
in front of Judge Puerto?
-: I don't believe so.
-: So he was represented by counsel at that point?
Bull: Yes, he was.
-: So when you say the judge
had a lot of exposure to Mr. Dacey-
-: He had brought other complaints.
Kafker: Other complaints.
-: He had brought other complaints
to the housing court that were addressed,
I think, in one of the judge's decisions.
Kafker: Okay, but that's different.
-: He had brought another motion, correct.
So he had dealt with Mr. Dacey.
And quite frankly, I don't believe he found credible.
May I touch on one other subject,
the 184-18 that my brother had mentioned here about,
you know, you can evict someone through, you know,
such other proceedings as authorized by law.
Just as a little background,
I did some digging on this
and the history of this statute is a little different.
When this was first introduced,
it was Senate bill, I think, 589,
and it was introduced by Senator Bulger actually.
And the title of the act was
an act prohibiting eviction other than due process of law.
That was the title.
And the language was different.
It says, you know, no person shall attempt to recover
possession of land or tenements in any manner
other than through an action brought pursuant to chapter 239
or such proceedings as are authorized by statute.
So that was then the initial bill that they filed
and that language came out.
So contrary to what my brother is saying
about, hey, you gotta have another statute
that authorized this.
They keep amending the nuisance statute.
That's not the case.
184-18 wasn't set to handcuff the judiciary.
It was to make sure there's no self-help eviction.
They wanted someone to,
a judicial proceeding to overlook it,
to make sure things are going as they should.
So, and again, they took the language out
and now it's such other proceedings as authorized by law.
And I think that's a very important distinction.
If they wanted it to just be by statute,
they could have left the language in there.
So 239 isn't the only way
to regain possession of a property.
-: Any other questions?
-: Nope.
-: Very good.
Bull: Thank you very much.
You affirm the lower court decision.