WORCESTER – Evictions ordered by the Worcester Housing Court that are carried out by constables unauthorized by the City of Worcester are unlawful, according to a legal memorandum written to Worcester City Solicitor Michael Traynor by a former federal prosecutor.
That memorandum was made available to This Week in Worcester.
Judges at the Worcester Housing Court have a practice of appointing special process servers in eviction cases in the City of Worcester. The appointees are constables approved in other municipalities, often in other counties, but not approved by the city of Worcester. Under Massachusetts law, M.G.L. Ch. 41 § 91 delegates to power to appoint constables to each municipality.
Volunteers with the Worcester Anti-Foreclosure Team (WAFT) have raised concerns about the legality of this practice. An order by Worcester City Councilor At-Large Thu Nguyen asked councilors to vote to request City Manager Eric Batista “not allow anyone to act as a special process server within city limits that is not a constable approved by city council.” Councilors asked for a legal opinion from Traynor during its meeting on May 9 before voting on the item.
Traynor’s legal opinion is scheduled to be delivered to councilors Tuesday, June 6, when the city council meets. The meeting begins at 6:30 PM in the Esther Howland (South) Chamber inside Worcester City Hall. The meeting is available by Zoom or phone at (929) 205 6099 with access code 917 2757 4825.
The question Traynor was asked to answer did not mention evictions, but only the legality of constables unauthorized in Worcester to act as a special process server in the city.
In his written legal opinion, Traynor cites Massachusetts Civil Procedure Rule 4(c), which says, in part:
“…service of all process shall be made by a sheriff, by his deputy, or by a special sheriff; by any other person duly authorized by law; by some person specially appointed by the court for that purpose…”
A process server serves legal papers or notices, like a subpoena or notice of eviction. Massachusetts Civil Procedure Rule 4(c) provides courts with broad discretion over appointing special process servers.
Massachusetts law clearly differentiates between service of process and a levy. A levy is defined as “taking or seizure of property by an officer pursuant to a writ of execution.”
As Traynor did not address the issue of evictions, This Week in Worcester asked, through the city manager’s office, for Traynor’s view on the power of special process servers to carry out the seizure of property in an eviction.
The response received: “Taking possession of the residence and of the defendant’s physical property is the execution of the judgment (summary process). Serving the execution and levying on the execution is part of the ‘process.'”
The McKee Memo
Retired attorney Sarah McKee, of Amherst, sent Traynor a written legal memorandum on May 23. The five-page document discusses the legality of constables unauthorized in Worcester to carry out evictions.
In her memo, McKee says she is a retired federal prosecutor and former General Counsel of the Interpol U.S. National Central Bureau. She last served as Governor Deval Patrick’s appointee for law to the Massachusetts Legislature’s Registry of Deeds Reform Commission until her retirement in 2013. She added that since retirement she’s “volunteered with the Massachusetts Alliance Against Predatory Lending (MAAPL)” and WAFT.
McKee’s memo makes several points and provides detailed footnotes.
She first note that Massachusetts court use a uniform writ of “Execution for Possession” in evictions. That form is addressed to “sheriffs of the several counties or their
deputies, or any constable of any city or town…” McKee writes, “Thus, the writ itself specifies not only the officials authorized to execute it, but the jurisdiction, whether within a county or a municipality, of each such official.”
She also cites a 2019 ruling by the Massachusetts Supreme Judicial Court, Adjartey v. Central Housing Court, 481 Mass. 830, 836 (2019), which states:
“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.”
She also cites a U.S. District Court case, Andrews v. S. Coast Legal Servs., 582 F. Supp. 2d 82, 84, 2008 U.S. Dist.:
“Note 2. Based on this conclusion, this court does not need to address the defendants’ claim that they were authorized to serve process pursuant to Mass. R. Civ. P. 4(c). In any event, this argument misses the point. While they may have been appointed as special process servers, that appointment did not authorize the defendants to engage in unlawful debt collection practices as the plaintiff has alleged, nor did it result in them being appointed as constables in Amesbury. … To be appointed as a constable in Amesbury, the defendants needed to follow the appropriate statutory appointment process. See Mass. Gen. Laws ch. 41, §§ 91, et seq….”
M.G.L. Ch. 239, titled “Summary Process for Possession of Land” covers the laws on evictions in Massachusetts. McKee also points out that M.G.L. Ch. 41 § 92 is, “The only statute that provides authorization to a constable to serve under Chap. 239, the Eviction Statute.” It contains the requirements for a constable to be authorized in a municipality.
McKee concludes that under M.G.L. Ch. 268 § 33, falsely presenting oneself as a constable in Worcester is a felony.
