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The U.S. Supreme Court has heard oral arguments in HUD v. Rucker/Davis v. Rucker, a case that has important implications for the ability of LHAs to control drugs and crime in their public housing developments.
The case involves the meaning of language in Section 6(l)(6) of the U.S. Housing Act, which requires public housing leases to contain a clause providing that certain criminal activity "engaged in by the tenant, any member of the tenant's household or any guest or other person under the tenant's control shall be cause for termination of tenancy." It began when Pearlie Rucker and three other elderly tenants of the Oakland Housing Authority sued successfully in federal court to enjoin their eviction from public housing because of drug-related crime engaged in by members of their households (and, in one instance, by a caregiver). The tenants argued that evicting them without proof they knew about the criminal activity or had some control over it was both unfair and illegal.
In January 2001, the Ninth Circuit Court of Appeals in San Francisco issued a 7 to 4 opinion siding with the tenants. It ruled that even though Section 6(l)(6) as written does not mention a requirement for the LHA to show knowledge or control, it must be read as containing such a requirement. The court stated that holding otherwise would lead to "odd and absurd" results that Congress could not have intended. Moreover, permitting evictions without such proof might well be unconstitutional. The Ninth Circuit's decision directly contradicted the regulatory position HUD has taken concerning this question for more than a decade. The decision thus had the effect of invalidating portions of the lease and grievance regulations.
The federal government's case was argued in the Supreme Court by Assistant to the Solicitor General, James Feldman. Gary Lafayette of San Francisco argued on behalf of OHA. Rucker and the other tenants were represented by Paul Renne of San Francisco.
Feldman argued that Congress was faced with extremely serious drug and crime problems when it enacted Section 6(l)(6) in the 1988 Anti-Drug Abuse Act and that its intent clearly contemplated evictions of entire households for the actions of individual household members. He also argued that the lease contract itself obligates the tenant to ensure or guarantee that certain typed of activity will not occur and that enforcement of the lease is not a punitive or criminal proceeding but an ordinary civil breach of contract action. Several justices seemed to agree, asking the residents' counsel why the lease should not simply be treated as a contract and enforced as it is written.
Feldman emphasized to the court that LHAs usually have long waiting lists and that the federal government had every right to a policy that allocated the scarce resource of public housing to families who do not engage in criminal activity.
Renne responded that even if an innocent tenant defense is not read into the statute by virtue of congressional intent, evictions of tenants without a showing of knowledge or control was a violation of due process. Justices David Souter and Ruth Bader Ginsberg said that they saw no question involving procedural due process because the action of the plaintiffs had prevented trial in state court. Souter directed especially sharp questioning to Renne concerning his assertion that any "innocent tenant" eviction where a tenant is held responsible for actions of other household members violated substantive due process. Disagreeing, Souter concluded that in view of the serious problems with drugs and crime that Congress was attempting to address in the 1988 Act, requiring the tenant to act as a "guarantor" was not only rational but reasonable. Justice Antonin Scalia observed that many state laws hold people responsible for actions of others and asked if the residents' counsel thought all of those laws were unconstitutional.
Some questioning of counsel also addressed whether the states were free to enact affirmative defenses that would be applicable in public housing evictions. Feldman argued that while the states probably do have some latitude in this respect where the federal government has not spoken, any state defense that conflicted with federal law or frustrated congressional purpose would be preempted. None of the justices contradicted these statements. Other arguments centered on whether the presence of an innocent tenant defense in drug forfeiture provisions found elsewhere in federal law carried some implication that they must also be read into the Housing Act. Scalia and others commented that Congress knew how to include such provisions where it wanted to and did not elect to do so in the Housing Act. Feldman argued, with apparent agreement by several members of the court, that public housing evictions are nonpunitive in character and fundamentally different from forfeitures in drug enforcement statutes.
As Judge Charles Breyer said in his district court opinion, Ginsberg drew a distinction between criminal activity that occurs within a public housing unit and that occurring elsewhere; however, she was alone in doing this. Justice Sandra Day O'Connor, while questioning initially whether the government's position might lead to "draconian" results, later commented that the innocent tenant defense had been "manufactured" by the Ninth Circuit.
LHA observers were satisfied that the court had examined the legal issues thoroughly and expressed guarded optimism that a favorable decision by the court might be forthcoming.
The outcome of this case is considered a matter of importance by NAHRO because it directly impacts upon the ability of LHAs to provide safe living environments. The Housing and Development Law Institute (HDLI) and NAHRO, joined by the Council of Large Public Housing Authorities and the Public Housing Authorities Directors Association filed a friend of the court brief on the merits in this case. HDLI and NAHRO had previously filed a brief in support of HUD's petition for certiorari. The case has garnered considerable media attention, with National Public Radio airing a feature that included an interview with NAHRO General Counsel Bill Maher.
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