Respondents Brief — Thorpe v. Housing Authority of Durham

INDEX

Page

Question Presented ..... acne eres venteeciax naan rr

EE Sede vecdanviacnpecncueecancdceaianneas a

Argument: i oa |

IE siisiacnsenrtxecsavekecaests ian Gale 4

I. The lease shown in the record is not an uncon- -

stitutional method of presé¢ribing and. defining

the tenant’s right of occupancy ............... 6

‘II. The Housing Authority’s decision not to renew

the Petitioner’s lease by giving her notice pre-

scribed by the terms of the lease and without

assigning to her reasons therefor and without

a preliminary hearing was not a denial ‘of due

RONG oon on scccspeennscecesees ee edges ces 10

Ill. The proceedings’ in the State Court if€tituted

by the Housing Authority did not deny to the

- Petitioner any constitutional right ........... 17

Conclusion ........... eenesesones apeibaineasaees (ao Te

Appendix: |

State of North Carolina Statutory Provisions .... ‘ 22

TABLE OF CASES.

Barsky v. Board of Regents, 347 US. 449. ieieseeée 916°

- Beilan v. Board of Public Education, 357 U.S. 399..... 16.

Bell v. Maryland, 378 U.S. 226 ;....ccccccoccccccecs 9

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

i Of: ere ree 9,10, 14,15 .

. Cafeterza and Rest. Workers Union v.- McElroy, 367

‘ Sy hays sean chivencuccebenes 12

% Chicago Housing ‘Authority v: Blackman, 4 Il. ad <'.

: SED, 193 WE BE GES (IGOR) once ccc nescence “14

Chicago Housing Authority v. Ivory, 341 Il. App. 282, °

-93 NE Fk ee er ee 9, 14, 15

il. Tigra _ Index ex Continued

Page .

Chin Yow v. United States, 208 U. rer ei ae nn 18

Columbus Metropolitan Housing Authority v. Simpson,

85 Ohio App. 73, 85 NE 2d 560 (1949) .......... 9,15

Detroit Housing Commission v. Lewis, 226 F. 2d 180

SE SE Rhos Knekne dens dnbeeebes evees - 14

Dixon v. Alabama State Board of Education, 294 F.2d

' 150 (5th Cir. 1961) cert. denied, 368 U.S..930 .... 17

Erie R. Co. v. Tompkins, 304 U.S. 64 ey Pe eee 9

Flemming v. Nestor, 363 U.S. 603 .................. 8.

Holt v. Richmond Redevelopment and Housing Au-

thority, Civil Action No.. 4746, E.D. Va., Sept. 7,

» «SE Ae ieee Rae ehhc nds taAbaameteies s+ 14

Housing Authogity of Los Angeles v. Codova, 130 . |

App. 2d Supp. 883, 279 P. 2d 215 (1955) ........ 15

‘Housing Authority v. Thorpe, 267 N.C. 431 (1966) .. 15

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

: eS EE cavcthabdesadneccasspeces ces 17

Kutcher-v. Housing Authority of Newark, 20 NJ.

i Fo (ff oe ree 15

Kwong Hai Chew v. Colding, 344 TE GD oo ncncncss 16

Lawson v. Housing Authority of Milwaukee, 270 Wise.

+ Ry Be ee Be ED ociceccccscescccccee

Lynch v. United States, 292 U.S. 571 .............. ~_ §

Marsh v. Alabama; 326 U.S. 501 ....... piGek mainte 14, 20

Morgan v. United States, 304 U.S. 1 ................ 16

Ng Fung Ho v. White, 259 U.S. 276 ..:............. 16

Piitsburgh Housing Authority v. Turner, 201 Pa.

Super, 62, 191 A.2d 869 (1963) ................ 9,15

Rudder. v. United States, 226 F. 2d 51 (D.C. Cir. _— 15

‘Schware v. Board of Bar Examiners, 353 U:S. 232... 15

Shelley v. Kraemer, 334 U.S.1....... ete OO 20

Shelton v. Tucker, 364 U.S. 479 ............ Sy

Sherbert v. Verner, 374 U.S. 398 .........2..04.0.. 16

Slochower v. Board of Educatipn of New York City,

ae FX Beer iieiban wawkoedinn 16.

Snowden We I OE TEMS © cv ccccessecsscccecce. 18

. Speiser v. Randall, 357 U.S. 513 ......... 2. eee eee 16

Steier_ v.. New York State Education Commissioner,

(COA 2d) 271 F. 2d 13 (1959) ......5......5.. 17

Torcaso v. Watkins, 367 U.S. 488 ......2........... 16

Tucker v. A, CP WS WE hae vcdcicccececs Make.

ee

Index Continued pass.

: Page |

Walton v. City of Phoenix, 69 Ariz. 26, 208 P. 2d 309 r

GED nncsteencd Cee enekninenennienexdes eeuei 9,15

Wieman v. Updegraff, 344 U.S. 183 ................ 16

Willner v. Committee on Character and eee 373

Fk UE. sancticiiaabhhinchittenchenen cane ess 15

_— v. Wright, 334 F. 2d 369 (5th Cir. 1964) ...... 17

STATUTES AND REGULATIONS

Executive Order No. 11063, 27 Fed. Reg. 11527 (1962) 7 -

* Federal ‘Acts on National Housing, Title 50 U.S.C. A.

We SE nik uns budetes nacsanesantacendaks 10

Housing Act of 1937, as amended, 42 U.S.C. § 1401,

~ GEE, Kcand ieee aibden naa eenenkwks houbaeanns 6, 7,9.

Housing Act of 1961, 42 U.S.C.A. §1410¢ . OEE 13 .

Local Housing Authority Management Handbook,

SEE sina chin cennchanheacesaneaual »- oe

North ocala Gen. Stat. 157-29 ../....... salicieiciniihics . 6

North Carolina Housing Authority Law, N.C. @. S.

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- Supreme Court of the Anited States

OcrosER TERM, 1966

i .

-. No. 712

Joyce C. THORPE, Petitioner

. V. | °

Hovsine AuTHORITY oF THE City or DURHAM

See

.

8

On Writ of Cortiorari to the Supreme Court

of North. Caxolina ©

a

BRIEF FOR HOUSING AUTHORITY OF THE

CITY OF on

aa ‘QUESTION PRESENTED”

. Did the Supreme Court of North Carolina violate

the Constitution of the Unite? States in sustaining the

eviction judgment of the Superior Court of the State

in an action brought by the Housing Authority against

*«

’

Q

~ :

the Petitioner, an n ocdupant of one of its dwelling units, . -

in the absence of a any finding that there was ai uncon-

stitutional anbianeed imposed as a condition of the

renewal of Petitioner’s Tease t ;

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. 11). The lease provided

_ that it would automatically be renewed for successive —

- terms of one month eack-and that the Housing Au-—

thority could prevent such automatic renewal by giving

to the tenant notice, in writing, of such intention fifteen

days prior to the last "ti 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: as-

- signed for a decision not to renew the lease by either —

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

Authority gave written notice to thé Petitioner that

the lease would not be renewed after the term ending

August 31, 1965 (R. 18). After the term ended on

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

vacate the premises and continued to te: of same

(R. 21). :

- The Housing Authority brought an action in Sum-

_méty Ejectment, before a Justice of the Peace in Dur-

ham County (R. 1); and after a hearing before the

Justice of the Peace, participated in by the Petitioner,

—

i

Thorpe, and her; counsel, Juggment was,entered by the

Court requiring -the defendant, Thorpe, to vacate the

‘premises. The Petitioner then gave noti¢e of appeal -

to the Superior Coyrt of North Oarolina (R. 4).

Upon the case coming on for hearing in the Superior

~ Court of Durham County, North Carolina, both parties

waived trial by jury and stipulated that ‘the Judge

‘residing should find the facts upon the stipulations

made ‘and. affidavits filed and render thereon judg-

ment (R. 6).* In her affidavit filed in this action, .

the Petitioner, Thorpe, asserted that the reason. for

her eviction was her efforts to organize the tenants of

_ MeDougald Terrace, the housing project belonging to

the Housing Authority (R. 8). It was stipulated by

both. parties that it was alleged by the Petitioner,

Thorpe, tha®the reason she was being evicted was due

. to her participation in the. organization of the Parent’s

Club in thé McDougald Terrace ‘Project (R. 6).

The Superior Court then found as fact that the

Housing Authority was the, owner of the property oc-.

cupied by. the Petitioner, Thorpe; that the lease was

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

ceived a written noticé from the Housing Authority -

_ terminating a lease effective’ August 31, 1965; that the

Petitioner, Thorpe, failed to vacate the premises, after

the 31st day of August, 1965; and that the organiza-.

tional activity of the Petitioner was not the reason for

giving her notice that the lease would not be renewed

(R. 19).

The Petitioner then iene to the ional Court

of North Carolina, and there the aguas of the

Superior Court was affirmed.

gE RE AREER PRET OME at 0 RAIA wg as

o.:.

| 4

* ARGUMENT

: 4 ‘INTRODUCTION roe

~ This case, on its facts, is not a test of the propositions. -

asserted by the Petitioner. Here, the Housing Au-

thority of the City of Durham, a corporation organized

. and operating. under the laws of the State of North

Carolina, acting neither as the agent of the State nor

of the Federal Government, instituted an action in the

Courts of the State of North Carolina to evict a tenant

occupying one of the dwelling units in a housing project

~ owned by the Housing Authority. This tenant con-—

tinued to occupy these premises after the end of the

term of her lease.- The tenant contends she was denied

-due process of law because the Courts of North Caro-

- lina did not require the Housing Authority, as a condi-

tion to obtaining judgment of eviction, to Show that it

had both ‘notified the tenant of specific reasons - for

. failing to renew her lease and given her an administra-

‘tive hearing on the question of the renewal of her lease.

The case arises in the context of a specific finding of

fact by the Court that Petitidner was not evicted in

connection withany—exercise on her part of First_

- Amendment rights to freedom of association. The

Housing Authority was under no statutory or constitu-

tional compulsion to renew the Petitioner’s lease after

it expired by its own terms; the absence of an assigned

and expressed reason for its unwillingness to renew .

the lease did not, give rise to any statutory or consti-

tutional right af occupancy by the Petitioner. In re-

sorting to the State Courts in an action of ejectment,

the Housing Authority. did not act as a governmental

- unit and did not exert any powers or privileges in ex-

cess of those vested in private proprietors.

a ——

—&BO

Assuming that the Petitioner did not have a consti-

tutional right to-continue occupancy of thé dwelling |

_ space after the expiration of the term of her lease,

on this record it cannot be argued that additional pro-

cedural safeguards are required to insure that some

. other constitutional right she may have had not be

“. denied: by indirection. On this record, it-cannot be

assumed that the Courts of the State of North Carolina

would permit the exclusion of this Petitioner or any

other prospective tenant for the purpose of taking

from her some right provided by the Constitution.

» The Housing ‘Authority contends that there is no

constitutional prohibition to the use of lease and the

normal legal concepts relating to landlord and tenant

in management of its housing projects, absent, at least, .

the positive showing that there is some act by the

- Housing Authority pursuant to a purpose to deny a

tenant some constitutional right, continued occupancy

of the dwelling unit not being a constitutional right.

Secondly, the: Housing Authority, acting’in its pro-

prietary c#pacity, had no constitutional duty to justify

_ to this tenant its decision -net-to renew her lease; and,

in abiding by the terms of the lease, did not act arbi-

trarily. Further, the existing procedures in the State’

_ Courts are Sufficient to enable a tenant or a prospec-

tive tenant to assert any alleged violation of constitu-

tional rights and that in this case, no violation of this

Petitioner’s constitutional rights has been shown.

r \ on 6

38 L .

'. The Lease Shown in the Record Is Not an Unconstitutional

- Method of a ‘and Defining the Tenant's Right —

_ of Occupancy ,

In the management of its low-rent housing projects,

the Housing Authority has, in this case, and presum-’

ably in all cases, regulated occupancy by using the legal

devices and concepts normally involved in and arising

from the landlord-tenant relationship. Both the United

States\Housing Act of 1937, as.amended, and the North

Carolin ‘Housing Authority Law’”’ contemplated and,

in fact; require that this be done. The State Statute.

_ says, in several places, that the Housing Authority may

“rent or lease the dwelling accommodations”’.". Words _

. appropriate to these concepts are also contained in the

- Federal Statute.. Neither Statute undertook to set out ’

a form for such lease nor to prescribe the length of

any term, but‘did adopt eligibility criteria for prospec-

tive tenants and for continued occupancy.’

The statutory and Federal administrative eligibility

—requirements for prospective tenants, while emphasiz..

e ing greater local responsibility by the Local Housing

"1 §ee N.C. G.S. 157-29.: ‘The decision of the Supreme: Court of

- North Carolina in this case is authority for this proposition.

* Housing Act of 1961, Section 10(g) provides in part: ‘‘(1)

The maximum income limits fixed the Public Housing Agency

shall be subject to the prior approval of the Authority (PHA) and.

the Authority may require the Agency to review and revise such

~—*Jimits if the Authority determines that changed conditions in the

locality make such revisions necessary in achieving the purpose

of the Act. (2) The Public Housing Agency shall adopt and

; promulgate regulations establishing admission policies which shall

_ egive full consideration to its responsibility for the rehousing of

' those displaced by Urban Renewal or other governmental action,

to the applicant ’s status as a serviceman: or veteran or relationship

to a serviceman or veteran or to a-disabled serviceman or veteran,

and to the applicant’s age and disability, housing conditions,

| — of housing need, ond | sources of income. . .’’-

| ec

Authorities, seem primarily designed to limit the ten-

_ ants to low-income families who are not able to find

decent housing within their. means elsewhere and do

‘not, certainly, require that every eligible family be

accepted as a tenant. The annual contributions con- .

tract between the Local Housing Authority and the .

Federal Housing. Assistance Administration, in the °:

‘ form which we believe to be generally applicable in the’ °

nation, provides that a Local Authority shall not permit

_ any family to occupy a dwelling unit in any project

except pursuant to a written lease, which’ lease shall

contain all relevant provisions necessary to meet the

requirements of the Housing Act of 1937, as aménded,

and the annual contributions contract.. The Local °

Housing Authority Managenient. Handbook published

by Public Housing Administration (now Department. .

of Housing and Urban Development) states that:

_ ‘*Whenever a family is admitted to occupancy inalow- .

~ rent project there is established a landlord-tenant rela-. .

tionship with contractual obligations to be fulfilled: by

both ‘parties.’’* Further, Executive Order No. 11063

. § Part IV, Section 1, Paragraph 6a. “The whole sub-paragraph

reads as follows : “Whenever a family is admitted to oceupancy ,

in a low-rent project there is established a landlord-tenant relation-

ship with contractual obligations to be fulfilled by both parties.

These obligations include many of those in standard landlord-

tenant leases, such as the provision by the landlord pf designated.

housing space and utilities and the payment of rent by the tenant.

But in low-rent public housing there are also the following special.

obligations of a tenant to be reflectéd in the lease: (1) Furnish

the Local Authority, upon request, with information necessary to —

determine eligibility for continued occupancy, the appropriate

rent and dwelling size required. (2) Pay an increased rent When

appropriate for ‘its redetermined income or family composition.

(3) Transfer to a unit of appropriate size (at such time as the .

Local Authority “may. designate) when a change’ in family com-

position warrants a different size dwelling. (4) Vacate t the

family becomes overincome or becomes subject to removal through

violation of amy remaee of tenancy.”’ '

2

CLIT SETI EN ATE PEL Ae te ON r x omar

8

of ‘November 20, 1962, prohibited discrimination ‘be-

cause of race, color, creed or national origin in the

_ leasing of such dwelling units. This lease is a valid

contract, though entered into by a quasi-municipal cor- _

" + poration and an individual. —" v. United States,

. .292 U.S..571. ;

Using the lease ttn, a cane landlord and ion

instrument, tends to prevent the segregation of the

~~ tenants in this project from. the society in which they —

' ” jive. In Flemming v.-Nester, 363 U.S. 603,.both Justice

Black and Justice: Douglas quote, with approval, a -

statement made by Senator George when the Social _

Security Act was. passed: ‘‘It comports better than .

any substitute we have discovéred with the American ©

concept that free men want to earn their security and

not ask for doles—that what is due as a matter of

earned right is far better than a gratuity... .’’ And,

so, here the Federal Government has not provided insti-

tutions in which all fndigents may be inmates, but has

granted financial assistance to quasi-municipal corpo-

rations organized under state law for the purpose of

injecting into the housing rental market a substantial

number of decent, low-rent dwelling units.

This ‘gives the Housing Authority no governmental

authority with respect to its tenants and no authority.

greater than that possessed by any other landlord. The _

interpretation and enforcement of the lease is a matter

for the Courts. There is no Federal administrative, —

statutory, or constitutional requirement that the term

of such lease be for the duration of the lifetime of the

' tenant or for the duration of his eligibility, there being

no guarantee that all members of the eligible class shall

have low-rent ee. within a housing authority

”

9

project. There is no showing -in this case. that this |

- lease as construed by the Courts of North Carolina

with reference to its termination date did not meet the

requirements of the Housing Act of 1937, as amended,

nor of the annual contributions contract between the —

Housing Authority and the Federal Housing Assistance

Administration. Here, statutory eligibility did not give

rise to a right of occupancy ; such right existed aod by _

virtue of the lease agreement. "

The State Court has held that. the lease was valid

and that its provisions as-to termination did not violate

either the North Carolina Housing Authorities Law

nor the North Carolina eviction statutes. This was a

North Carolina contract, and the Court below said:

‘“‘This lease was .terminated -in accordance with its

express provisions at Midnight 31 August 1965.”’ Erie.

R. Co. v. Tompkins, 304 U.S. 64; Tucker v. Texas; 326

‘U.S. 517; Bell: v. Maryland, 378 US. 226; Barsky v..

Board of Regents, 347 U.S. 442.

‘Similar leases have been generally sustained by the -

Courts. Walton v. City of Phoenix, 69 Ariz. 26, 208

, PB. 24 309 (1949), Chicago Housing Authority v. Ivory,

341 Ill. App. 282, 98 NE 2d 386 (1950), Brand v.

Chicago 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 (1949) are all in accord. with the

decision of the North Carolina Supreme Court in this

case and are, on the facts presented, directly i in point.‘

*In Walton v. City of Phoeniz, (69 Ariz. 26, 208 P.2d 309

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

‘*Tt would seem to be defendants contention that these state statutes .

(eviction statutes) have no application to other than private land- ~

_

ee a

‘The Housing Authority's Decision Not to Renew the Petitioner's

eS

‘Lease by Giving Her Notice Prescribed by the Terms of:

_ the Lease. and Without Assigning to Her ‘Reasons There-

waa Te py

' Of Due Process _

The. Petitioner’ imasidas eahited ‘the Housing Au-

thority to assign to her a specific reason for its decision -

‘not to renew her lease. The reasoning must have been

that by attacking the assigned reason, she would either —

cause the Housing Authority to change its mind or

cause her lease to be renewed or her occupancy con-

/ tinued without a lease by the Courts whether the Hous-—

_ lords 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 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 to the other.

It.is our opinion that this provision with reference to the termina-

tion of the tenancy is valid and binding upon the plaintiffs in the

_ same manner as though the lessor had been a private person rather

: . that a Governmental Agency.... The fact’ that the Government.

selected plaintiffs as the object of. such heneficence does not pre-

clude 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-con-

tinuing right of tenure irrespective of the terms and conditions

upon which the tenancy was founded, would not only. contravene

the purpose and — of the Act, but would come: near: to

—* ig

ing Authority agreed or not. She contends that the

. United States Constitution places the ‘burden on the.

- Housing Authority to set up a “reagon’’ for her to

_+ shoot at. Further, she also appears to-contend that the

reason#can bé attacked either because it denies her

‘some constitutionally protected privilege such as the

oe right of assembly under the First Amendment or that

it is just not sufficient. In following the provisions of

the lease and the published directives of the Federal

Public Housing Administration’ the local Housing -

Authority did not act - arbitrarily. — ner a

We respectfully submit that there is no constitutional

- requirement. that the reason for the Housing- Author- |

. ity’s- decision be sound, wise, or judicious,.or one that

' -would satisfy the Petitioner ér any other landlord or

& agency. In other words, the decision not to enter into a —

lease with this Petitioner ‘does’ not have constitutional.

connotations unless it is for the purpose of or results

in the denial to her of some constitutional right such

as the right of assembly. This is because the. petitioner,

does not have a constitutional right to, have a lease or

to have’ a renewal of her lease after the expiration

thereof and- because in making such decisions, the

Housing Authority is not acting as a government even

though some public funds are involved in the. support

) ?

5 Local Houning Authority Meesnenesd Hendbeck, Part IV, ©

Sec.'1, Par. 64(1): It is recommended that each Local Authorities’ |

lease “Be drawn on a month-to-month basis whenever. possible.

This should permit any necessary evictions to‘be accomplished with .

‘a minimum of delay and expense upon the giving of. a statutory

. Notice to Quit Without — reasons for such notice.” ;

“ oe SOREN TE MIT Peters . . . x~ Fianna =

? ® :

12:

of its operation.’ It has no authority over its tenants

or prospective tenants except those that arise out of

.the terms and provisions of the lease. Under the ap-

plicable statutes and regulations it does hAve authority

to refuse to enter into leases with certain members of

the Yass of” persons eligible. and to enter into Ifases

with others within that class. .The applicable statutes.

' .do not require the Housing Authority to enter into a

lease with an eligible Richard Roe even though there

®In Cafeteria and ‘Rest. Workers Union v. McElroy, the Court

_ said: ‘‘As these and other cases make clear, consideration of what

procedures due process may require under any given set df cir-

cumstances must begin with the determination of the precise nature

-of the Government function involved as well as of the private

interest that has been ‘affected by Governmental action. Where

it has been possible to cterize that private interest (perhaps _

an oversimplification) as & mere privilege subject to the Exécutives _

plenary power, it has traditionally been held that notice and

hearing are not constitutionally required. .

“What then was the private interest affected ie Admiral. Tyree’ s

action in the present case? It most assuredly was not the right

td 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.

_ ~4*Moreover, the governmental function operating here was note

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 operation of an

important Federal military establishment.

‘“‘Thus, the nature both of the private interest . . . and the

governmental power which has been exercised makes this case

quite different from that of the lawyer in’ Schwire, supra, the

physician in Dent, supra, and the ®ook in Raich, supra. .

"We may assume that Rachel Brawner could not constitutionally

have been excluded . . . if the announced grounds for her exclu-

sion had been patently arbitrary or discriminatory—that she

could not have been kept out because she was a Democrat or a

Methodist. ig ¥

eo ee

—-

. .

aes 18

are vacant dwelling units in -its properties, nor to as-

. Sign a reason why it does enter into a lease with eligible

John Doe and refuses te do so with Richard Roe. These

are matters within the managerial ahd proprietory re-

sponsibilities of the Housing Authority. If it appeared

as a fact that the Housing Authority did not select

Richard Roe because he was a Methodist‘or did lease

to John Doe because he was a Lumbee Indian, consti- “

tutional overtones could be heard. As the ‘Senate Re-

port. accompanying the Housing Act of-1961 states:

‘Section 206 would create greater flexipility in the

public housing program by requiring greater responsi-

bility for.administering the program at the local level.

Existing law contains very detailed and. complicated

orders of preferences. and eligibility to be applied

am@ng the low-income families. .It is impossible to

establish rigid nationwide. orders of this ‘kind which

will meet alk local circunistances. Local Housing Au-

thorities have had many years of experience under

these Federal requirements and should be relied upon

‘to be competent and fair ;and there is no question that.

they are in a much’ better position than the. Federal

Government to ascertain the myriad factors that may

be involved in a particular situation and to determine

their proper weight.’’ It is submitted that the Consti- /

tution is not more restrictive than the Statute.

Nor isa hearing by the Housirf® Authority or notice

of a specific reason procedural safeguards which should

be imposed by this Court to protect the Petitioner from

the invasion of some constitutional right other than

her alleged right of occupancy of the Housing Author-.

_ity’s property, The Housing Anthority having. no

. powers greater than those of other proprietors, the

procedures 7of the Court supply such safeguards.

‘

14

ww

The cases cited in Petitioner’s brief support this propo-

. ° gition. See Detroit Housing Commission v. Lewis, 226

F. 2d 180 (6th Cir. 1955), and Holt v. Richmond Re-

development and Housing Authority, Civil Action No.

. 4746, E.D. Va. Sept. 7, 1966. This Court has not re-

quired this in other cases: In Marsh vy. Alabama, 326

U.S. 501, for example, there seems to be no require-

ment that every stranger in the company.town be given

a hearing as a constitutional safeguard before ordering

him out. The possibility that he may turn out to be a

Baptist missionary does not give rise to.such-a consti-

tutional requirement. If it appears as a fact that his /

‘presence was pursuant to some constitutional right,

then he could not be penalized by state law.

Cases cited in Petitioner’s brief and in this brief

illustrate the point. In Chicago Housing Authority v.

' Blackman, 4 Tll. 2d 319, 122 N.B. 2d 522 (1954), the

Housing. Authority. notified the tenant that it was termi-

nating the lease because of the tenant’s failure and re-

fusal to subscribe to a Loyalty Oath required by [li-

nois statute. The Court held that this was an inyalid

termination even though the Housing Authority could

have terminated the tenancy upon fifteen (15) days’

written notice without giving a reason. In Chicago

Housing Authority v. Ivory, 341-Tll. App. 282, 93 N.E.

2d 386 (1950) and in Brand v. Chicago Housing Au-

thority, (OCA 7), 120 F. 2d 786 (1941), it was held.

that the Housing Authogity could terminate a month-

to-month tenancy after giving due notice of termina- .

tion without assigning any reason other than that the —

_ lease had terminated under its terms. In Holt v. Rich-

mond Housing Authority, (C.A. No.. 4746 E.D. Va.

(1966)), the Court made the same. distinction, there

finding as a fact that the tenant was given notice of

15

. termination because he was cee of the - Civic

Association.’ aon

. Housing Authority of Los Angeles v. Cordova, 130

Cal. App. 2d Supp. 883, 279 P. 2d 215 (1955), Lawson

v. He ousting Authority of Milwaykee, 270 Wisc. 269, 70

N.W. 2d 605 (1955), Rudder v. United States, 226 F.

2d 51 (D.C. Cir. 1955), and Kutcher v. ‘ Housing Au- |

thority of Newark, 20 N.J. 181, 119 A.-2d 1 (1955),

_ were all cases in which there was a showing of an un-

constitutional condition placed upon continued oc-

cupancy. Other cases, however, in which there was-no

showing of such an unconstitutional condition but

merely notice to vacate by reason of the lease termiza-

tion without administrative hearing, sustain the termi-

nation and eviction of the tenant. Walton v. City of.—

Phoenix, supra, Brand v. Chicago Housing Authority,

supra, Chicago Housing Authority v. Ivory, supra,

Pittsburgh Housing Authority v. Turner, supra, Co--

lumbus Metropolitan Housing en v. Simpson, —

supra.

Cases in which the pavernmental agency is acting i in

a judicial or quasi-je¢ieial manner and in which the

rights determined arise by virtue of law are not au-

thority against our point here. In this category are

Willner v. Committee on Character and Fitness, 373

U.S. 96, and Schware v. Board of Bax Examiners, 353

US. 232, which held that requirements of procedural

‘———

- In this case the Court cites Housing Authority v. Thorpe 267

N.C. 431 (1966) the decision of the Supreme Court of North

Carolina being considered here, 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

beeause she had been elected President of a tenant’s group. It

is that factual distinction which makes that decision inapplicable to

case at bar.’’

16

\ .

due process must be: met before a state canmexclude a

person from practicing law. In Morgan v. United

. States, 304 U.S.'1, there was no constitutional issue

decided but the Court there did refer to the quasi-_

judicial functions of administrative agencies, in that

‘case the Secretary of Agriculture, in fixing maximum

rates at Kansas City Stockyard. To like effect are the

deportation cases, holding that there must be an effec-

tive review of administrative action by regular judicial

branch of the government. Ng Fung Ho v. White, 259

U.S. 276, held that’ persons about to be deported were |

_ entitled to.a judicial determination of their claims that

. they are citizens of the United States. In Kwong Hai |

Chew v. Colding, 344 U. 8. 590, the Court aid not de-

cide a. constitutional issue.*

® In Sherbert v. Verner, 374 U. s. 398; an unemployment compen-

sation claimant could not be disqualified from these benefits because

of her refusal to work on Staurday, based on her religious beliefs.

In Speiser v. Randall, 357 U.S. 513, veterans in California claiming

tax exemption could not be required to execute ‘Oath of Non-

adversity to Overthrow the Government as a condition to such °

exemption. Slochower ‘v. Board of “Education of New York City,.

35@3U.S. 551, the Court found it a denial of due process to dis-

charge an employee merely because he relied upon the Fifth

Amendment plea of self-incrimination. In Torcaso v. Watkins, 367

U.S. 488, the Maryland ‘tequirement that a Declaration of Belief in -

God was a necessary qualification for public office was unconstitu-

tional. :In Wieman v. Updegraff, 344 U.S. 183, the Oklahoma

Loyalty Oath for public employees was unconstitiftional. In

Shelton v. Tucker, 364.U.S. 479, while there seemed to be no |

question about the right to discharge a teacher without notice or

hearing, it was held that it was unconstitutional to require every

teacher as a condition of employment to file annually an affidavit -

listing every organization to which he has beldnged within the

preceding five years. Compare Betlan v. Board of Public Educa-

tion, 357 U.S. 399, in which the Court held that a Board of Public

Education could constitutionally discharge a teacher who tefused

to answer questions; and Barsky v. Board of Regents, 347 U.S. 442,

upholding: the, action of New York Board of Regents to —

license to og medicine.

17

In the case at bar the Housing Authority was doing

no more than enforcing the terms of its lease, and the

courts of the state wére available, as the course of .

events proved, to provide an effective judicial review

and remedy for both parties.

‘The cases decided by 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. provided for

in the contract. .For example, there was evidence and

there were findings that those expulsions were punitive

measures taken because of student participation in

Civil Rights activities. Such is not the case here. See

- Dizon v. Alabama State Board of Education, 294 F. 2d

150 (5th Cir. 1961), cert. denied, 368 U.S. 930; Woods

v. Wright,°334 F. 24 369 (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 lower courts.on this subject, Steier v. New —

¥ i

York State Education Comtniastone, ¢ CCA 2d) am 1

F, 2d 13 (1959). ‘4

Ill.

The Proceedings in the State Court Instituted by the Housing

Authority Did Not Deny to the Petitioner Any Constitu-

tional Right

, It is apparently not denied that the Petitioner was

in the State Courts pursuant to proper summons and

was given a fair hearing at-all stages of the action, in- -

cluding opportunity to present evidence and to cross-

examine witnesses. The constitutional complaint as-

serted by the Petitioner was resolved against her when

the trial court found as a fact that she was not evicted |

te ee

because of any of her organizational activities‘as she

alleged. For this reason,.if that would amount to an

unconstitutional condition. placed upon the renewal of

be lease, it is not before the Court in this case.

* The Petitioner having adequate opportunity to do

so, the burden is upon Mgr to show in what respect, if

any, her constitutional rights were violated. Snowden

v. Hughes, 321 U.S: 1.° As Justice Holmes said in —

Chin Yow v. United States, 208 U.S. 8: ‘‘The courts

must deal with the matter somehow, ‘and there seems

to be, no way so convenient as a trial of the merits

before the judge.’

The. Petitioner i is not asking for wid protection of.

' the law; she is asking for a greater protection than

that enjoyed by others. The Petitioner cites Professor

Jones, but he says that'in the welfare state concepts of

‘traditional law’’ should prevail in ‘‘encounters’’ be-

tween ‘‘the poor” and public officials. He praises “our

legal orders’’ which have ‘‘achieved a reasonably effec-

tive procedure for,vindication of such other traditional

interest as property rights, contract: rights, and rights

to compensation for injury caused by another’s fault’’.

. , In this case, the Petitioner was not denied the process

« of ‘traditional law’’. The Housing Authority was re-

® In this case Chief Justice Stone said: ‘‘The unlawful adminis-

tration by state officers of a state statute fair on its face, resulting

-in-its. unequal application to those who are entitled to be treated —

alike is not denial of equal protection unless there is shown to be -

_ ‘present in it an element of intentional or purposeful discrimination.

This may appear on the face of the action taken with respect to a

particular class or person, or it may only be shown by extrinsic

evidence showing a discriminatory design to favor one individual

or class over another not to be inferred from the action itself.

« But’a discriminatory purpose is not presumed; there must be a

showing of ‘clear and intentional discrimination ; a

— A LID ALE DESY OLLI EL IES LEI

SO ARIEL ALAM °

19 .

quired by statute and by its lease to apply to the courts

_ and present: its case like any other litigant.

The Petitioner in her brief sets out North Carolina —

statutes relative to Summary Ejectment and, we take

it, makes no serious contention that there i is anything in

the procedures there prescribed that is in violation of

the Federal Constitution. Perhaps it should be pointed .

out. that there were substantial discovery procedures |

available to the Petitioner in the state court, and these

_ for the’convenienee of the Court are set forth in the

Appendix to this brief.

Once in court, the Petiti@per not only mea that.

the ‘action.could not be pursued because the Housing

Authority had failed to give her a reason for not wish-

ing to renew her lease and also failed to give her an ad-

ministrative hearing on that subject, but’ also at the

same time asserted that the reason her lease ‘was not re-

_ newed was that she had engaged in some efganizational

activities among the tenants. Once the Court had de-

termined as a matter of fact that the alleged unconstitu-

tional condition placed upon the renewal of -her lease

did not exist, she was left with the contention that the

action should be dismissed by the Court, either because

of the failure of the Housing Authority to come for-

ward with any reasons satisfactory to the Court for its

decision not to.renew or because the Housing Authority

before going into Court had not undertaken to give her

a reason or hearing thereon. From Petitioner’s brief,

it appears that the contention is that the trial court.

should have dismissed the action on a showing that the

Housing Authority had not conducted a hearing prior

to the institution thereof.

If that which a Housing Authority ¢ ean do for no

reason it-cannot do for an unconstitutional reason, it

20° |

does not tallow as a procedural safeguard, that some

reason m stated in order to be sure that it is not

unconstitutional. This is somewhat the difference be-

tween a demurrer .and an answer,.and surely it is

stretching constitutional requirements to construe them

as demanding one rather than the other. _ It is really

difficult here to see how the procedures available were

so inadequate and so-oppressive and discriminatory

upon this Petitioner as to amount to a violation of

- constitutional requirement. .

The crux of the whole matter’ seems to be, ‘aside from

the procedural point, the Petitioner construes the lan-

guage ‘of the North Carolina Supreme Court as mean-

ing that it would have reached the same ‘result had .

there been a finding that the Housing Authority. was

imposing some unconstitutional condition upon the re-

newal of the lease. This is mere speculation and

amounts to asking this Court to reverse the decision

of the North Carolina Supreme Court on constitutional.

grounds because of a possible construction of the mean-

ing of one sentence in its’ opinion applied to assumed

facts not contained in this record. Projecting. the

speculation, even if the Court had found that the Hous-.»

‘ing Authority was not an agency of the ‘tate, which |

it did not, it might have felt itself bound by the rule”

of Shelley v. Kraemer, 334 US. 1 , and. March v. Ala- ~

_ bama, 326 U.S. 501, to refuse to evict for an unconsti-

tutional condition. Surely, presuming. that the North .

Carolina Court was acting in accord with the Federal

Constitution, its language should be. read i in-light of

the record before it; and, on that record, it was imma-.

terial what may have ‘been the reason for the Lessor’s

unwillingness to continue the relationship of landlerd-

and tenant, since no violation of the Constitution had

21

‘been divi, Only if it can be said defendant had some |

right to occupy the dwelling unit conferred upon her ~

by the United‘States Constitution did the decision of

the State Courts aw the lease violate that ‘Con-

a. |

CONCLUSION

N o a@€quate constitutional reason. has been shown

_ by the “Petitioner for overruling the Judgment of the

North Carolina Superior Court, thestrial Court in this

ease. -The hearing Petitioner received in the Courts .

_ of the ptate was fair and impartial, giving her an op-

portunity to be heard and to present any. contentions

that she may have had concerning her constitutional |

. rights; and the Court in finding the facts in the case

acted on conipetent and adequate evidence. The bur- |

- den under these circumstances should be upon the Peti-

tioner to show that the Housing Authority and the

State .Courts have violated some constitutional right

_ that she may possess. In the absence of any such

showing, the Judgment of the Court below should be

allowed to stand: .

Respectfully submitted, .

«

; . Dante K. Epwarps

ee Wim Y. Manson

111 Corcoran: Street |

Durham, North Carolina .

Attorneys for Housing

Authority of the City ©

of Dorkam .

| APPENDIX

'. State of North Caroling Statutory Provisions:

Me ‘Selected Provisions of + Carolina Statutes Relating to

; Ex of Parties .

. § 1-568. 10. PReLmMiInaRy Procepune vor EXAMINATION

Berorg ExaMinine Parry’s {wirtan Puzaprnc Has. Been

Finep.—(a) Before a party has filed his complaint, peti-

tion or answer, he may, without notice to other parties,

apply to the clerk or judge for an order for the examination ©

| any person who may be examined by him as provided

by G.S. 1-568.4.

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

by, an affidavit showing:

7 (1) That the ‘action has been commenced and the pur-

; pose thereof; y -

* -. (2). That, in order to prepare his canis putition.

oY” answer, it is necessary for the applicant to. .

- secure information from the person proposed to

' be examined about certain matters, which matters

must be designated with reasonable particularity;

(3) That the information sought is not otherwise . ”

available the applicant, together with a state-

_ ment of th reasons therefor ; |

- (4) That, if the person proposed to be cxpaiinnd is

not a party, the action is being } rosecuted or de-.

fended in his behalf, together 1 facts in sup-

- port thereof ; — + nf x |

{5) That the application i is ny in son faith; and ics

(6) That the examination should be held ata placé

| designated in-the affidavit, together with facts

: a the reasons therefor. a

“2?

ew oe" ae

Sarto a tian ieee ge 3.0)

eT eee

| 23° oo

.

(ce). If the judge or siete finds that the facts are as set out ey

in the affidavit, he shall make an order: . © e

(1) a a commissioner al ‘hold the examina-

tion ;

(2) Fixing the.time and place of the siesta sub-

- ject to the provisions of GS. 1-568.5; © |

(3) Directing ithe person to be examined to appear

@ before the commissioner. at such time and place

__ for examination; and

(4) Designating the. particular matters’ ‘about which

the person may be e: 7 ed.

§ 1- 568. rah PRELIMINARY Paedepuns. FOR ‘Examination

Arrer Inrriat Pueaptnes Have Brew Fiuxp. —(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 a

ed his complaint; petition or answer, as the case may be,

r 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. commenced ;

... ° (2) That the. on has filed somplaing, petition or

answer;

( 3) That the a deiioes to examine a i diabinetils oi

‘ . spergon who has filed a petition, complaint or an-

‘swer or on whose behalf 4 petition, complaint or

answer has been filed ;

. (4) That the examination should be held at a plese r

designated in: the affidavit, together | with a. ‘|

, Romans aad reasons therefor.

Caries |

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

out in the affidavit, he shall make an ener:

' (1) Appointing a commissioner to: hold the examina-

tion; “er

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

ject to the provisiongof G.S. 1-568.5; and

(3) Directing the person to be examined to appear -

before the commissioner af such time and place

for examination.

8. .

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