City manager cannot stop out-of-towners from serving evictions

Alton King and other housing advocates attempt to block an eviction on Rodney Street in Worcester May 3.

Alton King and other housing advocates attempt to block an eviction on Rodney Street in Worcester May 3.

WORCESTER — While city housing advocates say out-of-town constables and other special process servers from outside the city can use forceful tactics against direct-action protests, the city solicitor has found the city cannot interfere with who a judge appoints to carry out an eviction or foreclosure.

Following requests from a group of city activists and a city councilor for the city manager to stop outside constables from carrying out evictions, City Solicitor Michael Traynor wrote in a legal opinion attached to the City Council agenda released Friday that the city manager does not have legal authority to prevent a court-appointed special process server from carrying out what the court has empowered them to do.

“The judge reviewing the request exercises their judgment in the approval or denial of the motion,” Traynor wrote. “For this reason, the court would not agree to preemptively refuse to issue any special process server appointments.”

At the May 9 City Council meeting, Councilor-at-Large Thu Nguyen requested City Manager Eric D. Batista not allow anyone, including a special process server and an outside constable not licensed as a constable in the city of Worcester, to have the ability to execute an eviction.

Nguyen’s request came after members of the Worcester Anti-Foreclosure Team, a mutual aid fund whose volunteers have used direct-action protests such as human blockades to prevent residents from being evicted from their homes, reported constables who come from outside of Worcester are serving foreclosures and have resorted to attempting to physically move protestors from the property.

Nguyen shared a video on Instagram May 3 that appeared to show a 2017 incident where people carrying out an eviction being physically held back by protestors. The man trying to carry out the eviction appeared to kick open a door and push a woman into the dwelling as other protestors yelled at him that he was committing a crime.

At the May 9 City Council meeting, Grace Ross, chair of the board at the Worcester Anti-Foreclosure Team, said she was the woman pushed back during the 2017 protest and that the server assaulted her.

“I got assaulted, thrown through a door. My feet went all the way up in the air. I landed on my back,” Ross said. “The occupant was kicked in the chest so that she was pushed through a wrought iron railing that broke and she fell into a bush.”

Ross said the outfit trying to carrying out the 2017 evictions came from Lowell.

Nguyen and the anti-foreclosure activists have said constables who come from outside the city are less accountable to the city administration than City Council-appointed constables. Ross said city-appointed constables pay a bond, which makes the city legally liable if these constables break the law.

At the City Council meeting, Nguyen framed the issue as one of other municipalities and judges taking power away from Worcester City Council to appoint the constables who serve in the city.

Councilor-at-Large Morris Bergman requested Traynor submit a legal opinion saying he doubted the city’s wishes about outside constables would hold sway in a housing court, where the constables are granted the authority to execute an eviction.

In the legal opinion, Traynor wrote he also does not believe the city manager has such authority in a housing court.

Traynor wrote that state rules for civil procedure are based on orders from the Supreme Judicial Court.

According to the regulations on process, such a process can be carried out by a sheriff or a deputy as well as someone specially appointed by the court for that purpose.

Traynor added the rule does not specifically name constables as people who must carry out the special process. He said the court-appointed person can be a constable from another municipality or a private investigator.

In addition, Nguyen requested a report on how many evictions have been and are currently being served by outside constables. Traynor said he was informed by the housing court that it does not track the data.

This article originally appeared on Telegram & Gazette: Worcester lawyer: City can’t stop out-of-towners from doing evictions

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