Brief in Opposition to Petition for A Writ of Certiorari — Thorpe v. Housing Authority of Durham

ae

INDEX :

=, ;

Question Presented :.......... 2p6beésendensteonunenes 1

Statement ........... SPREE aN cae Oe

Reasons for Seni the Writ

L. There Is No Conflict Between the oe of

This Court and the Judgment Below .......».. 3

II. There Is No Significant Conflict Among the De-

cisions of Lower Courts Upon the Issue Rained

BOE sdekateiniwacdescddesapesaseinineeaats 8

III. This Case on Its Facts Is Not of Sufficient Na-

tional Importance To Require Review by This ;

Sp ccnkeetcns ssh ao tl ak tiniest aon ane eee ae 12

CE vc cceccecdhwassisacderesccesdbanbenepaen 13

BR. 60s ccnvscigsebinisveacekeeeonnn la

TABLE OF CasEs

Beilan v. — of Education, 357 U.S. 399 (1958) . 4

Brand v. Chicago Housing Authority, (CCA 7), 120 F.

el Se EE haces 5 ed haere vocoder eaeaie omnia 8,9

' Cafeteria and Rest Workers Union v. McElroy, 367 -.

+ Teh Se DD nktcntiedeeatab ones ckesabesnaume 4,5

Chicago Housing Authority v. Bachinca, 4 Ill. 2d 319,

ee es ee I | ea bed eAcgeanderecunnecan 9

Chicago Housing Authority’v. Ivory, 341 il. App. 282, |

© FR ee, ED kind eevee ca dkats tan Ociene 8

Columbus Metropolitan Housing Authority v. Simpeon,

; 85 Ohio App. 73, 85 N.E. 2d 560 (1959) ......... 8

Cramp v. Board of Public Instruction, 368 U.S. ree

YE Se na ere 4

2d 150 (5th Cir. 1961), cert. denied, 368 U.S.

EP sacusadabvihiaGuimedians teenie Suateabuun “11

i? oak Index Continued’ °

~ ¢Page —

Holt v. Richmond Housing Authority, (E.D. Va. C.A.

“Sy "Sita Soar ean NE 10

_. Housing Authority of Los Angeles v. Cordova, 130 Cal.

Ayp. 2d Supp. 883, 279 P. 2d 215 (1955) ...7.. 9

Joint Anti-Fascist Refugee Committee v. McGrath, =.

te ON i ala eb nk 866 6050 the 5

Knight v. State Board of Education, 200 F. Supp. 174,

ee EE ccc e va ddan ihe eg ecebacen eau ee 11

Kutcher v. Housing Authority of Newark, 20 N.J. 181, ;

| ee CARs Ske Ren is tten es veteacsss 10

. Lawson v. Housing Authority of Milwaukee, 270 Wisc.

Se ee es, Oe OD COE cancel ecnccesscvess 9

: Pittsburgh Housing Authority v. Turner, 201 Pa.

Super: 62, 191 A. 2d 869 T1963) ................ ~

Rudder v. United States, 226 F. 2d s (D.C. Cir.1955) 10

Schware v. Board of Bar Examiners, 353 U.S. 232

ESOS ERE Ay OR ee 4,5

Shelton -v. Tucker, 364 U.S. 479 (1960) .............. .

Sherbert v. Verner, be 6

Slochower v. Board of Education, 350 u S.,551 (1956) 4

Steier v. New York State Education Commissioner,

. (CCA 2a) 371 FH. Be UB (IGGD) .w. nw cccceses eee. |

Torcaso v. Watkins, 367 U.S. 488 (1961) ......... as .o

Walton v. City of Phoenix, 69 Ariz. 26, 208 P. 2d ass

EE Ota a eee aCe hah sky sed 0 ves < 8

Wiecman v. Updegraff, 344 U.S. 183 (1952) a 6 a's de

va v. Wright, 334 F. 2d 369 (5th Cir. 1964) ....... 11

Srare SraTures AND Reovtations

§ 1-568 10, ‘General Statutes of North Carolina See 8

§ 1-568 ‘AL, General. Statutes of North Carolina ...... 8

§ 42-26 General Statutes of North Oarolima-.....-... 7

§ 42- 31, General Statutes of North Carolina ...... “es

§ 42-34. General Statutes of North Carolina ........ 7

§ 157-9, General Statutes of North Carolina ........ 6

§ 157- 29, -General Statutes of North Carolina chew euan °F

a Sf FEDERAL SraTures AND Reouiations ,

United States Housing Act of 1937....... oreyeer

Federal Acts on National Housing, °

' Title 50 U.S.C.A. War Appendix ...... peoc@ee FD

eo

IN THE

| Supreme Court of the United Piutes

OCTOBER TERM, 1066

No.

Joyck C. THorPE, Petitioner,

v. :

° Hovusmne AUTHORITY OF THE Crry or DurHAM.

eicnse ae

‘ BRIEF OF THE HOUSING AUTHORITY OF THE CITY OF

DURHAM. IN OPPOSITION TO PETITIONER’S PETI-

TION FOR WRIT OF CERTIORARI TO THE SUPREME.

COURT OF NORTH CAROLINA ~

QUESTION PRESENTED ‘

| Did the Supreme Court of North Carolina decide

_ a Federal question of substance in a way probably not ©

‘in accord with applicable decisions of the Supreme -

Court of the United, States in holding that a local

Housing Authority could successfully maintain an

action in ejectment in the State Courts by showing

‘it had complied with the terms of its lease and the

general law of ‘this State applicable to landlord and >

tenant, in the absence of any finding that the tenant:

was discriminated against or evicted for any unlawful

reason ?

eee | .

STATEMENT |

The Petitioner and the Housing Authority of the

City of Durham, on the 11th day of November 1964,

entered into a written lease, leasing to the Petitioner,

Thorpe, an apartment in a building owned by the Hous- ~-

ing Authority of the City of Durham for a term be-

ginning November 11, 1964, and terminating at mid- |

night November 30, 1964 (R. 18). The lease provided

_ that it would automatically be renewed for successive

terms of one tygonth each and that the Housing Au-

thority could prevent such automatic renewal by giving

to the tenant notice, in writing, of such intention fif-

teen days prior to the last day of the term, and that

the tenant could prevent the automatic renewal by

giving a like notice to the Housing Authority. There

- Was no provision in the lease requiring a reason to be

assigned for a decision not to renew the lease by either

party. On the 12th day of August 1965, the Housing

Authority gavé written notice to the Petitioner that

the lease would not be renewed after the term ending

,August 31, 1965, (R. 4). After the term ended on

August 31, 1965, the Petitioner, Thorpe, refused to

vacate the premises and continued to occupy same

(R. 5).-

The Housing Authority brought an action in Sum-

mary Ejectment. before a Justice of the Peace in Dur-

ham County (R. 5); and aftér a hearing before the

Justice of the Peace, participated in by the Petitioner,

‘Thorpe, and ‘her. counsel, Judgment was entered by

the Court requiring the defendant, Thorpe, to vacate

the premises. The Petitioner then gave notice of ap-

peal to the Superior Court of North Carolina (R. 5).

Upon the case coming on for hearing in the Superior

Court of Durhany County, North Carolina, both parties -

waived trial by. jury and stipulated that the Judge

.

.

3

presiding should find the facts: upon the atuiitatiine ‘

made and affidavits filed“and render thereon judgment

(R. 2). In her affidavit filed in this action, the Peti- |

tioner, Thorpe, asserted that the reason for her eviction .

was her efforts to organize the tenants of McDougald

Terrace, the housing project belonging to the Housing

Authority (R. 15). It was stipulated by both parties

. that it was alleged by the Petitioner, Thorpe, that the

‘reason she was being evicted was due to her participa-

tion in the organization of the Parent’s Club in the

McDougald Terrace Project (R. 13).

The Superior Court then found as fact that the

Housing Authority was the owner of the property

occupied by the Petitioner, Thorpe; that the lease was

duly executed; that the Petitioner, Thorpe, duly re- ,

ceived a written notice from the Housing Authority -

terminating a’ lease effective August 31, 1965; thatthe

Petitioner, Thorpe, failed to vacate the premises after.

the 31st day of Auigust, 1965; and ‘that the organiza-

tional activity of the Petitioner was not the reason

for giving her notice that the lease would _ be re-

newed (R. 2-7).

The Petitioner then appealed to the ines Court

of North Carolina, and there the ane of the Su-

perior Court was affirmed. )

-

REASONS FOR DENYING THE WRIT

L »

There Is No Conflict ‘Between the Decisions of This Court

and the Judgment Below.

No decision of this SSE which is

squarely in point. In numefous cases, this Court has

protected the constitutional rights of’ an individual -

when his job was placed in jeopardy by an unconstitu-

tional requirement of a Governmental Agency. Of these

o

e

cases the Petitioner-cites Greene v. McElroy, 360 U.S.

474 (1959); Slochower v. Board of Education, 350

U.S. 551 (1956); Shelton v. Tucker, 364 U.S. 479

(1960) ; ‘Torcaso v. Watkins, 367 U.S. 488 (1961);

— Wireman v. Updegraff, 344 U.S. 183 (1952) ; Cramp v.

~ Board of.Public Instruction, 368 U.S. 278 (1961) ; and

Schware vy. Board of Bar Examiners, 353 US.. 232

(1957). |

Greene v. M cElroy, supra, did not tinvelve a constitu-—

tional decision, the Court saying: ‘‘The type of hearing |.

was the produet ‘of administrative decision not ex-

plicitly authorized by either Congress or the President.

Whether those procedures under the circumstances

comport with the Constitution we do not decide.’’ In

Slochower, a teacher was discharged for invoking the

Fifth Amendment before a Congressional Committee.

In Schware, an applicant was arbitrarily denied the

? Tight to take a bar examination. In Cramp, a teacher

_ was required to take an unconstitutionally vague ‘loy-

alty oath. In Wieman, a public employee was re-

quired to take an unconstitutional loyalty oath. In

Torcaso, a Maryland requirement that. a public office

holder declare hig. belief in God was unconstitutional.

In Shelton, a teacher could not be compelled to file

annually an affidavit listing every organization. to

which he had belonged within the es five years

as a condition of employment.

On the other hand in Bevan vy. Board of Dieration,

357 U.S. 399. (1958), it was held a Board of Public Ed- «‘

' ucation of Philadelphia could discharge a teacher who

refused to answer questions asked by his Superintend-

ent without violating the Constitution. And in Cafe-

- . teria and Rest Workers Union v. McElroy, 367 U.S.

886 (1961), it was held that a-Commander of a Mili-

tary Base could, without notice or assignment of ‘rea-

“‘>gon, discharge a civilian employee on the Base without

ee any provision of the Constitution."

, In the other case cited by Petitioner, Joint Anti-.

Fascist Refugee Committee v. McGrath, 341 U.S. 123

(1951), this Court ‘held that an allegation that the At-

torney General included an organization ina list of

groups designated. by him as Communists and trans-

mitted such list to the Loyalty, Review Board, all with-

interest that } hak been affected by ovmmiagtiel | action. Where

it has been possible to characterize that private interest (perhaps

an oversimplification) as a mere privilege subject to the Execu-

tives plenary power, it has traditionally been held that notice

and hearing are not constitutionally required. . ;

‘‘What then was the private interest affected by pean Tyree’s

a¢tion in the present case? It most assuredly was not the right

to follow a chosen trade or profession. Rachel Brawner remained

entirely free to. obtain employment as a short-order cook or to

get any other job, either with M & M or with any other employer.

All that was denied her was the opportunity to work at one

isolated and specific military installation.

‘‘Moreower, the governmental function operating here was not

the power to regulate or license, as lawmaker, an entire trade or

profession or to control an entire branch of private ‘business, but

rather, as’ proprietor, to manage the internal oe of an

‘important Federal military establishment.

‘‘Thus, the nature both of the private teinaren . and the

governmental power which has been exercised makes this case

quite different from that of the lawyet in Schware, supra, the

_ physician in Dent, supra, and the ceok in Raich, supra,....

- ““We may assume that Rachel.Brawner could not constitutionally

have been excluded . . , if the announced grounds for her exclusion

had ‘been patently arbitrary or discriminatory—that she could

not have been kept out because she was a Democrat or a Methodist.’’

6.

‘out notice or: hearing, stated a | case of action in the

Federal Courts, Br

In Shérbert v. Verner, 374 U, , 398, an unemploy- a

- ment compensation claimant who refused to work on

ny

- Saturday because of her religious beliefs could not —

constitutionally be denied unemployment compensation

for that reason, that being in violation of the Free

Exercise Clause of the First Amendment.

None of these eases dealt with an election by ‘an

employer not to renew a contract of employment hav-

ing ended at a fixed term. In all of these employment

cases cited by Petitioner, there was something. that the

~ employee had to do or refrain from doing as a condi- -

tion of his continued employment and those conditions. -

were unconstitutional. There was always something

more involved. than just a decision to fire an employee.

Moreover, the private interest in the cas¢-at bar was

to:rehew a lease which; by its terms, could not be re-...

newed over objection by either landlord or tenant. If

‘the local Housing Authority exercised any govern-

mental function here, it was, as proprietor, to manage

the internal operation of its housing units.. Neither

_ of these circumstances brings this case within the pur-

* view of any of the decisions of this Court holding -

actions of administrative agencies unconstitutional.

The North Carolina Housing Authority Law gives

the Housing Authority ample. power to enter into the |

‘lease, as is set forth in the record ;? and such lease is.

‘not in violation of any Federal statute. The whole.

_ body of the State and Federal Legislation and Public

Housing Administration Regulations have, since the

beginning... coftemplated the use of leases to govern

» #N.C. G8. 157-9 shown on page 24a of Petition.

~ fm

' © Lee ele 7 aa . ’

- the octupancy of dewetting ‘units. The North Carolina |

Housing Authority Law specifically gives the Housing —

Authority the right to own'this property and to lease |

_ the dwelling units therein. While there is careful limi-

tation on the power of the Housing Authority to lease’

its dwelling units, insofar as the income’of the poten-

tial tenants is concerned,’ there is no stautory limita- .

tion upon-the length of the, term of any lease nor the

conditions set upon the renewal of any lease.

The ‘Housfrig Authority of the City of Durham did. ‘

not perform a governmental furiction in its decision

not to renew the Petitioner’s lease. It did not purport

‘to placé the Petitioner on a list‘nor to classify her, and

had no authority to do so. It did not purport to enact. —

legislation, to ai a rules — the effect #

legislation. ea,

The Housing Katinitiy did not here warner to act

as‘a Court or a Quasi (Burt, but took its ease into the

Courts of this State in a’manner similar ‘to any other

private landlord.‘ In the State Courts, the Petitioner’

_ asserted her claim that she was being evicted because

of ‘her organizational activities, but the Court found

as a fact that this was not the case (R. 5). On this

record, the Petitioner seems reduced to the argument

, that. the Housing Authority, as a sort of Quasi Court,

should have held a pre-trial hearing before going into

' the Courts of the State, or should have proved a motive,

agceptable to the Courts, upon the trial; and absent

this, due process was not had. The Petitioner had =

ample opportunity to examine and cross-examine the

Executive Director of the Housing Authority, either

*N.. GS. 157-29 chown on page S80 of Petition. -

‘Gs. 42-26, G.S. 42-31, GS. 42-34—see appendix this Brief,

pages la and 2a.

1 ARNT ODE RE NR MARLEE RENE PN API EE NRE

4 a eaten 8

before or during the trial in the courts below and by —

‘appropriate discovery proceedings to examine any

other officers or agents of the Housing Authority with

respect te any pertinent question involved in.the pro-

’ ceedings including motives, if any, for the eviction.’

' She did assert that the Housing Authority’s motive in

giving her notice that her lease would not be renewed *

was her organizational activities in the housing proj-

ect, but the trial°court found against her on this issue

- of fact. The Supreme Court of North Carolina on ‘this

_ record was clearly entitled to treat this as: we other

summary ejectment proceeding. .

my. a

shinin: 2 iy Mhiliniads Cialis teatin tes Gitien oa

.. Lower Courts Upon the Issue Raised Here. —

Walton v. City of Phoeniz, 69 Ariz..26, 208 P. 2d°

309 (1949), Chicago Housing Authority v. Ivory, 341.

. Ill. App. 282, 93 NE 2d 386 (1950), Brand v. Chi-

cago Housing “Authority (CCA 7) 120 F. 2d 786

(1941), Pittsburgh Housing. Authority v. Turner, 201

Pa. Super. 62, 191 A. 2d 869 (1963), Columbus Metro-

politan Housing Authority v. Simpson, 85 Ohio App.

73, 85 NE 2d 560-(1959) are all in accord with the de-

“fsion of the North Carolina Supreme Court in this

cas¢ and. are; on the facts presented, directly i in point.®

5G, 1-568. 10 & G.S8. 1.568: 11—see — this Brief, pages

de and 4a.

—~ In Walton -v. City of Phoenis, (69 Ariz. 26; 208 P.2d 309

e (1949)), Undall, Justice, said in delivering opinion of Court:

.° . “Tt would seem to be defendant’s contention that these ‘state

statutes: (eviction statutes) have no application to other than

___ private landlords and that insofar as the plaintiff is concerned —

‘the whole matter is governed and controlled by the United States

. Housing- Act of 1937 as amended. Defendants, however, fail to

_ direct our attention to any specific provisions of the Act which

? 9

In Chicago Housing ‘aathinitie v. . Blackman, 4 ti.

2d 319, 122 N.E. 2d 522 (1954), tenants were served

with notices terminating their tenancies for failure and

refusal to subs¢ribe to the Loyalty Oath required by

Illinois Statute., In Housing Authority of Los Angeles

v. Cordova, 130 Cal. App. 2d Supp. 883, 279 P. 2d 215

(1955), in a suit to evict tenants, the tenants filed an-

swer alleging that the termination of their lease was

. unlawfulin that the only reason therefor was tenants’

refusal to sign’a certificate that they were not mem- :

bers of organizations designated by the Attorney Gen-

eral of the United States as subversive. The Court

denied the Housing Authority’s motion-for ‘summary °

_ judgment ;on ‘the pleadings, and the cause was -re-

manded for trial upon the-issues tendered. In Lawson

v. Housing Authority of Milwaukee, 270 Wise. 269, 70

support this theory. As a matter of fact, a reading of the entire

act, with its amendments, as‘well as the related’ Federal Acts on

National Housing, Title 50 U.S.C.A. War Appendix, leads one .

. irresistibly. to, the opposite conclusion.’”’ In Brand v. Chicago

Housing Authority, the Court said: ‘‘ Any property right acquired

by the plaintiffs was. circumscribed by the terms and conditions —

upon which it was founded. . True, as tenants, they acquired the

right of possession, but this right was limited by the terms of the

lease by which such right was. obtained. By express provision

thereof, either party was entitled to cancellation on fifteen days’

__ notice tothe other. It is our opinion_that this provision with

reference to the termination of the tenancy is valid and binding

upon the plaintiffs in- the a .manner as though the lessor had

been a private person rather than a Governmental Agency. . . . The

fact that the Government selected plaintiffs as the object of such

beneficence does not preclude it from determining at a later time

that the purpose.of the Act will be better served by the selection

of some other family of the same or lower income class. To hold, as"

plaintiff would have us do, that the mere selection of a tenant

carries with it a continuing right of tenure irrespective of the

terms and conditions upon which the tenancy was founded, would —

not onl¥ contravene the purpose and policy of the Act, but would

catinechie entre ewe’

~- ate ae een meat « i mee rm ye wt mame

_ oo

N. .W. 2d 605 (1865), the Housing Authority deuak a.

Resolution which provided for‘non-membership in: any

organization designated as subversive by the Attorney

. . General of the United States as a condition of eligi-

. bility for continued occupancy, and tenants. brought,

the action fora declaratory judgment adjudicating

said Resolution Mvalid and unconstitutional. The

Court overruled a Demurrer to that Petition. In Holt -

v. Richmond Housing Authority, (E.D. Va. C.A. No.

4746 (1966) ), the Court found as a fact.that the tenant

_. was given a notice of terminatiqn because he was Presi-

® dent-of the Civic Association. The Court cites Hous-

ing Authority .v. Thorpe, the judgment of the Court

below in case at bar, and said: ‘‘There, however, the

Court found as a matter of fact that whatever may

have been plaintiff’s reason for terminating the lease,

it was neither because the defendant had engaged in

efforts to organize the tenants nor because-she had been

elected President of a tenant’s group. It is that

factual distinction which make om decision ——

_ cable to case.at.bar.”? —.

Rudder v. United States, 226 F. 2d 51 (D. C. Cir.

1955), and Kutcher v. Housing Authority of Newark, -

: 20 N.J. 181, 119 A.-2d-1-(€1955), where likewise cases

holding that the efforts of the Héusing Authorities to

enforce the provisions of the so-called Gwinn Amend-

ment éhacted by the United States. Congress in 1953

did not meet the requirements of due process.’

>

All of these cases are consistent with the decision of

the North Carolina Supreme. Court Court in this case.- ‘These

tke win ‘Snnthnt oe provided ‘‘No housing unit constructed

- under the United States Housing Act of 1937, as amended, shall

be. occupied by a person, who is a member of. an oe

Sere a areas by ae Attorney General .

eterna mon oy onarenrer ee) wr: Te eal aie .

™ — — —— =

Om LOGE OLENA I RIMES TS

11:

cases stand for the proposition that the Petitioner

should assertthe impropriety of the Housing Author- -

ity’s motives or. reasons for failing to renew her lease

* in the Courts of the land, including any effort by the

Housing Authority to enforce the Gwinn: Amendment.

This she, in fact, did in this case and the’ Court found

the facts against her. None of these’ cases suggested

-. the invalidity of the form of leases used by the Hous-

cet LN TRIE OO NPI EYRE LOR CRY ET LATE WE RAE : che ieee anes ss

; ‘ =

ing Authorities ‘and: described in the letter from the

. Assistant. Secretary for renewal and housing assist- ©.

ance, Department of Housing’and Urban Development,

which is set forth in Not® 7 on page 9 of the Petition

in this case.

" The cases. decided " lower Federal Courts involving

the expulsion of students before they had finished their

term of study are clearly not analogous. For one

thing, there was no question of refusing to renew. a

contract, the term of which had expired,’ by notice pro-

vided for in the Contract. For another, there ‘was evi-

dence and. there were findings that those expulsions

were punitive measures taken because of student par-

ticipation in Civil Rights. activities. Such is not the

case here. See Dizon v. Alabama State Board of Edu-

cation, 294 F. 24 150 (5th Cir. 1961), cert. denied, 368

U.S. 930; Woods v. Wright, 334 F. 2d-369 (5th Cir.

1964) ; Knight v. State Board of Education, 200 F..

Supp. 174.(M.D. Tenn. 1961). —Moreover, there is a

conflict apparently among ‘the lowér “courts on this

subject (see Steier v. New York State Education

‘Commissioner, (CCA 2d) 271 F.2d 13 (1959)), which

this Court has riot resolved. The ‘facts of the case at

bar do not lend themselves to such resolution. *

ff

Sf

2B

. I

‘This Cass on Its Face Is Not of Sulficient National importance

“o To Require Review by This Court. |

In this case the lease itself. appears to be valid.

_ There appears to be no contention that, insofar as its

terms relevant to this case are concerned, it is oppres-

_ sive or unreasonable when compared with leases avail- ©

_ able to people in general. Neither this State nor the ~

Nation has a legal duty to supply housing for~every- °

_ one, incliding the very poor. Eligibility here does not

give rise toa right of possession of a particular dwel]l-

ing unit, since, for-one thing, there are many more

eligible. than there are dwelling units available. The

| — history: and philosophy of all the- Federal and

statutes on the subject is to leave’ the selection of

ehants; from among those eligible, to the Housing

/duthority. But the Housing Authority is not granted

’ by any law, any powers exceeding.that of a private .

landlord and certainly no powers similar to adminis-

trative agencies who, by statute, are designed to ad-

minister admissions to bar or expulsion from school.

To dispossess this tenant, the Housing Authority went

into the Courts of the State in the same manner as any

other. landlord, and a hearing was had—the fairness

of which has not been galled in question.

To require Ho ousing Authorities to hold official hear-

g not: to-renew leases of its tenants -

- would seem to call for legislation vesting in such Au-

- thorities powers of a Quasi Judicial nature, making

them into a Court—perhaps less impartial than the.

— established Courts of the State. In fact, as cases cited

ings before. elec

show, the Courts have consistently protected tenants’

=i a Tights when there was any finding some constitution-

bens protected. right had ons violated.

ie

3 For ‘the anette reasons the Housing Authority

of the City of Durham respectfully submits that there

is no-Federal Constitutional basis for Petitioner: to

~ have any absolute right to a hearing before said Hous-

ing Authority upon its election not to renew her lease...

_ She had a hearing in the Courts of North Carolina. In

this hearing before the Courts of North Carolifia, Peti-

tioner asserted her allegations that; her lease was not

. renewed for a possibly unconstitutional reason or rea-

sons.. The lower Court found as a fact that the reason

or reasons for the Housing Authority’s decision: not to

renew Petitioner’s lease was not for the possibly un-

constitutional reasons which she alleged. There is no

cause shown for overriding that finding. Therefore, -

the Housing Authority ‘of the City of Durham respect-

fully. submits that Petitioner’s Petition for a Writ of .

Certiorari to the Supreme Court of North Carolina

‘should be denied.

Respectfully plenitied,

. Dantet K. Epwarps

Wi.1aM.Y. Manson

. 111 Coreoran Street —

; Durham, North Carolina

4 i Attorneys for Housing

co - Authority of the City.

ee: of Durham. |

<4 ie is Sek ~~" * ; \~

a aie aE

7 “APPENDIX ae

State of North Carolina. Statutory Provisions —

_ SELECTED PRovisions, OF ,THE STATUTES RELATING To

Actions IN EJECTMENT

— $42-26. Tewant Houpine Over May BE Dispossessep Nn

Certain Cases. —Any tenant or lessee of any house or land,

. andthe. assigns under the tenant or legal representatives

of such tenant. or lessee, who holds over and coftinues in

‘the possession of thg demised premises, or any part.

thereof, without the permission of the landlord, and after

demand made for.its surrender, may be removed from guch

. premises in the manner hereinafter préscribed in any of

the following cases: = + CC

1.. When a tenant in possession of real estate holds over _

after his term has expired. |

-'2. When the tenant or leche, or other person under him,

has done or' \omitted: any act by which, according to the

stipulations: on the lease, his éstate has ceased. .

3.*When ny ‘tenant or lessee of lands or tenemeiits, who

- is in arrear for rent or has agreed to cultivate the. demined al

premises and to pay a part of the crop to be made thereon —

as rent, or who has given to the lessor a lien on such crop

as a security for the rent, deserts the demised premises,

~ and leaves, them unoccupied and uncultivated.

§ 42-31, Triat By Justice; Jury TRIAL; Sotembine: Exe-

cuTion.—If the defendant by his answer denies any mate-

rial allegation in the oath of the plaintiff, the justice shall

hear the evidence and give’ judgment as he shall find the: -

facts'to be. If either party demands: a trial by jury, it

ane shall be granted under the rules prescribed by, law for other

trials by jury before a justice; ‘and if the jury finds that

_ the allegation i in the plaintiff ’s oath,which entitles him to

be put in possession, is true, the justice shall give judgment

that the oes be Femoved from and the plaintiff put

a

Be ee heey 2a

‘in possession of thé demised premises, and also for such

rent,and damages. as shall have been asséssed-by the jury,

and for costs; and shall issue his enapenae) to carry the

judgment into.effect.

—- 42-34 . Unpbyraxine ON Arrrau; Waren To. BE In- e

CREASED.—Hither party may appeal from the judgment of.

the justice, ‘as’ is prescribed in other cases of appeal from

the judgment of.a justice ; upon: appeal to the superior court

either plaintiff or defendant may demand that the same |

shall be tried at the first term of said court after said appeal

“is docketed i in said court, and said trial shall have preced-

ence in the trial of all other cases, except in cases of excep-

tions to homesteads: Provided, that said appeal shall have

been docketed at least ten days prior to the convening of .

_ said court: Provided further, that in the event the trial be-

forethe justice of the peace takes place af least fifteen days

prior to the convening of said superior court, said appeal

shall; upoh the demand of either plaintiff or defendant, be

‘docketed in time to be tried at said first term of said su- —

perior court after said trial.before the justice of the peace:

Provided, further, that.the presiding judge, in his discre-

‘tion may make up for trial in advance any pending case in

which the rights of the parties or the public require it; but

no execution commanding the removal of a defendant |

‘from the possession of the -demised premises, shall be sus- e

pended until. the defendant gives an undertaking in an

. amount not less than’ one year’s rent of the premises, with

sufficient surety, who shall justify and be approved by the ! aa

Pe justice, to be void if the defendant pays any judgment which e

“\ @ that or any other action the plaintiff may recover for

“rent, and for damages for the detention of the land. At

any term of the superior court of the cofhty in which such

° appeal is docketed after the lapse-of one year from the

_ date of the filing of the undertaking: above mentioned, the

“tenant,” after legal notice to that end has been duly executed _

on him, may .be required tv show cause why said under- _.-

taking. mre not be es to an arnount sufficient to | f

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: mene “eo y , ee anes | {

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cover rents ond damages far such period as to the court

may seem proper, and if such tenant fails to’ show proper

cause and does not file such bond for rents and damages as

the court may direct, or make affidavit that he is unable so.

to do and show merits, his appeal shall be dismissed and:

the judgment of ‘the justice of the peace shall, be affirmed.. *

SeLectep Provisions or Norta Carouina Srarures

“ .

RELATING TO-EXAMINATION OF PaRTIEs .

§ 1-568.10. PRELIMINAR PROCEDURE FOR Bixamratrox. BE-

rorE EXAMINING PaRTy’s bet Pieapine Has Been .

—/(a) Before a party has filed: his complaint, aetition or

answer, he may, without notice to other parties, apply Yo.

the clerk or judge for an order for the examination of any

person who may be examined by him as ‘Provided. by G.S.

1-568.4. |

- (b) The application must be in the form of, or. supported

by, an affidavit showing:

(1) That the action has been commenoed and the. pur-

‘pose thereof ; ) : |

(2) That, in onder to prepare his complaint, petition

or answer, it is necessary for the “applicant to

- secure information from the person proposed. to

be examined about certain matters, which mattters

« {3) That the information sought is not ofperwise avail-

able to the applicant, together with a sta

of the reasons therefor ;

(4) That, if the person proposed * be examined’ ig |

not a party, the action is being prosecuted or de-

fended in his behalf, ia sar with facts in sup-

. port thereof ;

| (5) -That the: splheatiin ' is made i 7 peed faith; and

\ :

must be designated with reasonable particularity; — -

“-

(6) That the cmaniontion should be held at a place

| designated in the “affidavit, together with. facts

showing the reasons therefor.

‘() If the judge. or clerk finds that the facts are as set

out in the affidavit, he shall make an order:

(1) Appointing | a commissioner to hold the exam-

ination ;

(2) Fixing the time and place of the examination, sub-

ject to the provisions of G.S. 1-568.5;

(3) Directing the person to be examined to appear

before the commissioner at such time and place

for examination ; and ~ J

(4) Designating ‘the particular matters about which

' the person may be examined. ,

§ 1-568.11. PRELIMINARY ProcepuRE FOR EXAMINATION

Arrer Inrruan Pteapines Have Bren Firep.—(a) After a

party has filed his complaint, petition or answer; he may,

‘without notice to other parties, apply to the clerk or judge

for an order for the examination of any person who has

-also filed his complaint, petition ‘or answer, as the case

may be, or on whose behalf a complaint, petition or answer

has been filed as provided by G.S. 1-568.4. |

(b) The application must be in the form of, or supported

by, an affidavit showing :. -.

(1). That the action has been ummenenly

(2) That the. applicant has filed oipiele, petition or

answer ;

&) That the applicant desires to examine a designated

person who-has filed a petition, complaint or an-

swer or on whose behalf a petition, complaint or

answer has been filed ;

5a

s

(4) That the examination should be héld at a place

designated in the’ affidavit, together with facts

showing the reasons therefor. |

(c) If the judge or clerk finds that the facts ‘are as set

out in the affidavit, he. shall make an order:

(1) Appointing a commissioner to hold the exam-

ination; . ‘

(2) Fixing the time and place of the examination, syb-

ject to the provisions of G.S. 1-568.5; and

(3) Directing the person to be examined to appear

before the e¢ommissioner at such time and place

for examination. '

a)