Amicus Curiae Brief — Department of Housing and Urban Development v. Rucker

———_———

TN oY WY

E Lis Nos. 00-1770 & 00-1781

IN THE |

Supreme Court of the United States

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, PETITIONER

y

PEARLIE RUCKER, ET AL., RESPONDENTS

OAKLAND HOUSING AUTHORITY, ET AL., PETITIONERS

Vv.

PEARLIE RUCKER, ET AL., RESPONDENTS

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Brief Amici Curiae of Lawrence Lessig, John J. Donohue,

James Gordley, Gary Blasi, June Carbone, Jo Carrillo,

Mary Jane Foran, and Cathy Mosbrucker

In Support of Respondents

DAVID T. GOLDBERG* JUDITH K. APPEL

99 Hudson Street, 8" Fl DANIEL N. ABRAHAMSON

New York, NY 10013 The Lindesmith Center

(212) 334-8813 717 Washington Street

Oakland, CA 94607

(510) 208-7711

Attorneys for Amici Curiae

*Counsel of Record

TABLE OF CONTENTS

I oo so ds ou eke Newnes deakeus l

EP IDs p.-dncinde eae ope Wees ses seuseune l

ARGUMENT

I Contract Principles Do Not Support Evicting

PEED ose ccccuevenccbandepeceidndesesse 5

A. The Parties’ Legal Rights Are Determined

By The Leases, Not The Federal Statute ......... 5

B. Respondents Did Not “Consent” To

Eviction Under These Circumstances ........... 6

1. Under Contract Law Principles,

The OHA Leases Do Not Constitute

A Tenant’s “Warranty” That Household

Members Will Refrain From Drug Activity .. 7

2. Only “Serious or Repeated” Violations Give

Rise To Eviction Under OHA’s Lease ..... 12

C. Eviction Under These Circumstances Would Not

EP EY ove cogede wonewedddsaaebenss 15

IL. The Statute Is Not Reasonably

Construed As Authorizing Respondents’

ee eee 23

TABLE OF AUTHORITIES

Cases

1021-27 Ave. St. John Hous. Dev. Fund Corp.

v. Hernandez, 584 N.Y.S.2d 990 (Civ. Ct. 1992) ....... 20

A & B Cattle Co. v. City of Escondido, 192 Cal. App. 3d 1032

(Cal. Ct. App. 1987) .......ccecccscccccccsccnceces 13

Allegheny County Hous. Auth. v. Hibbler,

748 A.2d 786 (Pa. Comm. 2000) ................ 26, 27

Alma Motor Co. v. Timken-Detrait Axle Co.,

Ec cdcudsagsdeveesvedecie ween ies 5

Ashwander v. TVA, 297 U.S. 288(1936) .............4. 2

Bennis v. Michigan, 516 U.S. 442 (1996) ...... 4, 5, 22, 28

BMW v. Gore, 517 U.S. 559 (1996) .......... 4, 14, 15,22

Boston Hous. Auth. v. Bryant, 693 N.E.2d 1060

SE SU GEE oc baSdcceverddctecsrccedseocces 15

Carroll v. Housing Opportunities Comm'n,

NE HOU civ ocdowcsveccccovaceneces 21

Chevron USA, Inc. v. NRDC, Inc.,

dee le ceeebadeovedeseess 8, 23

Cincinnati Metro. Hous. Auth. v. Harris,

1983 WL 8893 (Ohio App. June 15, 1983) ............ 19

City of Chicago v. International College of Surgeons,

FSB US. ISSCISGFD occ nneecnssuseueseuesenenent 30

City of South San Francisco Hous. Auth. v. Guillory,

41 Cal. App. 4th Supp. 13 (Cal. Super. App. 1995) ..... 19

Decatur Hous. Auth. v. Brown, 349 S.E.2d 501

Ga. Age. TIGR oo ccccccccccsesecsesscauspanevess 15

Diversified Realty Group, Inc. v. Davis,

628 N.E.2d 1081 (Il. App. 1991) .......... eee eee 12

Frost v. Railroad Comm'n, 271 U.S. 583 (1926) ........ 7

Gorsuch Homes, Inc. v. Wooten,

597 N.E.2d 554 (Ohio. App. 1992) ............eeeeee 20

Hann v. Easton Hous. Auth.,

709 F. Supp. 605 (E.D. Pa. 1989) ..........c cee e eens 15

Harris v. Klure, 205 Cal. App. 2d 574

(Cal. Ce. Agm. 19GB)... pv ccccdccccccccscccsccseseuns 11

Heston v. Farmers Ins. Group, 160 Cal. App. 3d 402

(Cab. Ce. Age. 1906)... cccccccccceceeseccsscseoeeenns 8

Ilkchooyi v. Best, 37 Cal. App. 4th 395

(Cal. Ce. Aap, 1906)... ov ccccncessdcecssve-coeccnsene 7

Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa

Fe Ry. Co., 520 U.S. 510 (1997) 2... cece eee e eee eee 26

Jersey City Hous. Auth v. Jackson,

749 F. Supp. 622 (D. N.J. 1990) .........0eeeeeeeees 15

iv

Keating v. Preston, 108 P.2d 470 (Cal. Ct. App. 1940)... 18

Kickapoo Tribe v Babbitt,

ee E, ED occ ccccccpecessocceces 26

Knight v. Black, 126 P. 512 (Cal. Ct. App. 1912) ....... 20

Leonedas Realty Corp. v. Brodowsky,

454 N.Y.S.2d 183 (Civ. Ct. 1982) .... 22... ....0.05.. 19

Lynch v. San Francisco Hous. Auth.,

55 Cal. App. 4th 527 (Cal. Ct. App. 1997) ............. 6

Machias Hotel Co. v. Fisher, 56 Me. 321 (1868) ....... 16

McNeece v. Wood, 267 P. 277 (Cal. 1928) ....... 8, 18, 21

Mid-Northern Mgmt, Inc. v. Heinzeroth,

599 N.E.2d 568 (Ill. App. 1992) ............ cee eee 20

Miller v. Reidy, 260 P. 358 (Cal. Ct. App. 1927)........ 20

Norfolk & W. Ry. Co. v. American Train

Dispatchers Ass'n, 499 U.S. 117 (1991) ...........0645. 8

Pacific Mut. Life Ins. Co. v. Haslip,

ee oe cc cece cecccces 10, 11

64 Park Ave. Corp. v. Blum, 78 N.Y.S.2d 818

(Sup. Ct. App. Term 1943) .........ccccececceceees 16

Pennhurst State School & Hosp. v. Halderman,

CEs cen cccddvesceteoscccoceess 6

Vv

People v. Ison, 346 N.W.2d 894

SE GU DE che cccecdecnccauéocuswodadsecute 1]

Perdue v. Crocker Nat'l Bank, 702 P.2d 503 (Cal. 1985) . 19

Plyler v. Doe, 457 U.S. 202 (1982) ... 2.22... cece eens 17

Porter v. Warner Holding Co., 328 U.S. 395 (1946) ..... 29

Powell v. Franco, 684 N.Y.S.2d 226

(Age. BOO. TEGED ccccccccccccccccceccocccccvesess 20

Richmond Tenants Org., Inc. v. Richmond Redev. &

Hous. Auth., 751 F. Supp. 1204 (E.D. Va. 1990) ....... 16

Ross v. Gulf Oil Corp., 522 A.2d 97 (Pa. Super. 1987) ... 20

Rowe v. Wells Fargo Realty Servs., Inc.,

166 Cal. App. 3d 310 (Cal. Ct. App. 1985) ............ 16

Schenk v. Pro-Choice Network, 519 U.S. 357 (1997) ... 2,5

Scudder v. Perce, 114 P. 571 (Cal. 1911) .............. 8

Seid Pak Sing v. Barker, 240 P. 765 (Cal. 1925) ........ 1]

Siler v. Louisville & N. R. Co., 213 U.S. 175 (1909) .... 2,5

Solid Waste Agy. v. U.S. Army Corps of

Engineers, 531 U.S. 139 (2001)... . 2... eee ee ee eee 28

Spence v. Gormley, 439 N.E.2d 741 (Mass. 1982) ...... 17

vi

Spence v. O'Brien, 446 N.E.2d 1070

ST écccceaccskdawhdeceteteds ouxwés 18

Steele, v. Branch, 40 Cal. 3, 11 (1870) ............... 20

Superior Motels, Inc. v. Rinn Motor Hotels, Inc.,

195 Cal. App. 3d 1032 (Cal. Ct. App. 1987) ........... 18

Tenement House Dep't v. McDevitt,

CK ee 17

Ticor Title Ins. Co. v. Employers Ins.,

40 Cal. App. 4th 1699 (Cal. Ct. App.1995) ............ 13

United States v. Bajakajian, 524 U.S. 331 (1998) ..... 4,24

United States v. Foy, 416 F.2d 940 (7th Cir. 1969) ...... 12

United States v. Leasehold Interest in 12] Nostrand Ave.,

760 F. Supp. 1015 (E.D.N.Y. 1991) ................. 14

United States v. Poole, 878 F.2d 1389 (11th Cir. 1989) .. 17

United States v. Robinson

721 F. Supp. 1541 (D. RL 1990).........-. 2.0.00 0. 6

Weber v. Aema Casualty & Surety Co.,

ie al ET EE a 17

West Va. Univ. Hosp., Inc. v. Casey,

Ee hn ddmeteecenegase ben saese's ee 28

Vil

Statutes and Legislative Materials

Pe SND oa deratinduvcncntes<anéecsdsaic chee

Pe WR ines cocsuddinsacskeladiceatins 29

ED veccvdetecéddasccndadeuaties 22

ee sdnciccdncccccndeaatdencscett 14

III idkickscocecdvdscactcicarcciass 13

IE OI cewiccccinsevccccscots ‘aiid 24

ee ee i casiccsctbcidedbascdvacivess 9

I sin dnc nk ainkedvatieneeseciall 24

42 U.S.C. § 1437d(I)(6) ... 2... 222 e cece eee passim

42 U.S.C. 1437d(c)(4 (A) iii 1994) .. 2.2... eee ee. 29

Gh Gi GaP GD ici cccccnccscccannscccccesae 20

DRG Te cvcnccescccosvdcsbcaseadenas 19

GR nO OE ose ncdicscnccctctubsonducecces 8

GG Ge OIG «ohne cdc evkcdbcatedentoncas 19

CORI ccc ctcasdcddecdscanebinsdss 19

Cal. Health & Safety Code § 11357(b) ............... 14

Vill

SA GPP ceccedocceccsoccceccscecces 14

Se REED occcbecdootodcecescesocees a 16

H. R. Rep. 101-559 (1990) .. 0... 6. cece eee cece eee 25

S. Rep. 101-316 (1990) ......... 02 ec e ee eeeee 25, 27, 30

Regulations |

24 C.F.R. § 9OL.4S(C). 1. cece eee ee eeee 24

24 CF.R. 966.4()(S)(Vii)(B) «0... 0-00 e eee eee e eee ee 25

FR PEEPPPTTT TT TTT TTT TTT Try 19

66 Fed. Reg. 50,032 ......... 0. ccc ceceeecceeceucees 6

Other Materials

AMERICAN HERITAGE DICTIONARY OF

THE ENGLISH LANGUAGE (4* ed. 2000) .............55. 9

HOMELESSNESS IN AMERICA (J. Baumohl, ed. 1996)... . . 21

F. HARPER & F. JAMES, THE LAW OF TORTS (1956) ..... 11

R. SCHOSHINSKI, AMERICAN LAW OF

LANDLORD & TENANT (1980) .........---0500ee- 16,17

Restatement (Second) of Property § 12.5 ............. 16

Restatement (Second) of Contracts § 241 ............. 18

Restatement (Second) of Contracts § 265 ............. 18

Interest of Amici Curiae’

Amici Curiae are California-based private attorneys and

law professors who practice in the State’s courts and teach

students contract, property, and landlord/tenant law. As are

other parties supporting Respondents, Amici are troubled by the

circumstances giving rise to this case: an attempt to extend an

avowedly “harsh” public policy approach to situations where its

congressional proponents intended it would not apply — and do

so with an indifference to individual considerations that

Congress believed would be determinative.

Amici are also particularly concerned by a central theme of

Petitioners’ legal argument: that the measures defended here are

in harmony with common law tradition — and that contract

principles provide legal (and moral) authority for the evictions

at issue. In fact, as we explain herein, application of common

law principles to the idiosyncratic facts of this case would

produce precisely the opposite result, precluding eviction of

these tenant-Respondents. But equally important, contract and

landlord-tenant doctrine, while solicitous of landlords’ property

rights and responsibilities to other tenants, are also sensitive to

tenants’ strong interest in continued occupancy and historically

skeptical of claims (even those grounded on “consensual” lease

terms) that minor or unavoidable lease violations, by tenants

dealing in good faith, support termination.

To the extent that the Court addresses the broad statutory

questions pressed upon it, it should do so, we believe, with a

more balanced and realistic appreciation of this legal context.

Summary of Argument

Because the (limited) record in this case establishes at least

“All Parties have consented to the filing of this Brief, Sup. Ct. R. 37.3.

It was not authored in any part by counsel for a party, and no party other than

Amici and their counsel made a monetary contribution for its preparation and

submission. Sup. Ct. R. 37.6.

2

the requisite “reasonable probability” that the tenant

Respondents’ suit will succeed and because the courts below

correctly concluded that the other equitable factors tilt

decisively in Plaintiffs’ favor (a determination that Petitioners

do not ask this court to disturb), the order preliminarily

enjoining Petitioner Oakland Housing Authority (OHA) from

evicting the tenants should be upheld.

First, although the parties and courts below devoted

substantial attention to discussing when, if ever, federal law

would permit housing authorities to evict tenants based on

drug-related activities of which they are personally “innocent,”

Amici submit that this Court need not — and therefore should not

- resolve that difficult and constitutionally sensitive question

here. See Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)

(Brandeis, J., concurring); Siler v. Louisville & N. R. Co., 213

U.S. 175, 193 (1909); Schenk v. Pro-Choice Network, 519 U.S.

357, 384 n.12 (1997) (judgment may be sustained on any

ground supported by the record).' Whatever the characteristics

of lease terms and eviction regimes that the Affordabie Housing

Act, HUD’s regulations, and the Constitution might

hypothetically allow, the leases actually at issue in this case

would not support Respondents’ eviction. Rather, a fair-

minded reading of those agreements discloses: (1) that an OHA

tenant would mot expect eviction based solely on the

misconduct of a household member in instances where the

tenant had “do[ne] all [she could] to prevent the * * * activity,”

see J.A. 69, and (2) that eviction, in any event, is limited to

cases of “serious or repeated” misconduct — not the one-time

use of marijuana by teenage grandchildren that gave rise to

"Following the District Court, Amici will use the term “innocent” to

refer to tenants who, like Respondents, did not parucipate in, know of, or

foresee a third party's drug activity and took responsible steps to prevent its

occurrence.

3

OHA's proceedings against Respondents Lee and Hill.”

This natural reading of the pertinent agreements, buttressed

by blackletter rules requiring that ambiguities in leases be

resolved against the drafting party and that forfeiture

conditions, in particular, be strictly interpreted, would make

eviction impermissible in this case. Indeed, that conclusion is

all the more compelling here, given the central importance that

Petitioners attach to Respondents’ “consent.” See, €.8., HUD

Br. at 17, 23, 47; OHA Br. at 7-14.

Relatedly, although there is no need for the Court to pass

judgment on the hypothetical lease that HUD defends — i.e, one

that provided “indiscriminately” for eviction of a tenant

whenever a family member engaged in drug activity, no matter

how insignificant, unforeseeable, far removed from public

housing, or inconsequential for other tenants, see HUD Br. 33,

40 — Amici submit that Petitioners are wide of the mark in

suggesting that such arrengements are “frequently” found in

residential leases, id. at 23. Although ieascs sometimes include

terms imposing a species of vicarious responsibility (for

example, providing that the tenant is liable in damages for harm

his guests do to landlord property), the “covenant” that HUD

describes, where the eviction remedy is available for conduct

that neither takes place on the property nor poses any plausible

threat to other tenants’ interests, is unorthodox. Moreover,

when property owners do seek to enforce more usual (i.e., less

?This Brief focuses on the validity of the preliminary injunction as it

relates to Respondents Rucker, Lee, and Hill. The District Court grounded

its protection uf Walker on its view that his Americans With Disabilities Act

claim had a fair chance of success - a decision that the Ninth Circuit

affirmed and that neither Petitioner asks this Court to review. See HUD Br.

at 9-10 n.5; OHA Br. at 16.7. Also, though HUD notes in passing that the

preliminary relief awarded was not confined to the named Plaintiffs’ cases,

Br. at 9, it mounts no distinct challenge to the injunction on that basis.

4

Sweeping) tenant commitments, courts will duly consider: (1)

the parties’ respective bargaining power; (2) the strength of the

tenant’s interest in continued occupancy; (3) the character and

severity of the misconduct; (4) the extent of the conduct’s

foreseeability and of the tenant’s knowledge and involvement

(if any); and (5) the availability to the landlord of less severe

alternative means of achieving its objectives.

Tellingly, these considerations overlap substantially with

those highlighted in this Court’s recent decisions addressing the

constitutionality of regimes that, like this one, seek to use

property deprivation to punish or deter disfavored conduct, see

BMW v. Gore, 517 U.S. 559 (1996); United States v.

Bajakajian, 524 U.S. 331, 334 (1998); see also Bennis v.

Michigan, 516 U.S. 442, 454 (1996) (Thomas, J., concurring),

and protected by the Congress that enacted the statutory

provision whose meaning is in dispute. They point to a distinct,

narrower ground for upholding the preliminary relief awarded

in this case.

Even if these OHA leases were iron-clad in providing for

eviction and even if the federal law could be construed, as

Petitioners and dissenting judges below read it, as declining to

give innocence dispositive weight in every case, the statute is

not fairly read to authorize eviction of individuals in

Respondents’ circumstances. Whether or not housing

authorities have “discret‘on” to treat tenant innocence as

outweighed in any u. . ‘idual case by other circumstances

militating in favor of eviction, the statute cannot be construed

— as it would have to be, to overturn this preliminary injunction

— as empowering public landlords to ignore those traditional,

equitable considerations and seek eviction in cases where, as

with Respondents’, those point uniformly in the opposite

direction. Discretionary authority of this latter sort is rare and

constitutionally problematic. Congress did not confer it here.

5

ARGUMENT

I. Contract Principles Do Not Support Evicting

Respondents

A. The Parties’ Legal Rights Are Determined By The

Leases, Not The Federal Statute

Although HUD’s characterization of this as a “case

involving statutory interpretation,” Br. at 18, and its vigorous

defense of its regulations are understandable in light of the

reasoning of the Court of Appeals, Amici submit that the facts

and procedural posture of this case indicate a different “starting

point,” id., for the Court’s review. Because the preliminary

injunction, by its terms, binds OHA (but not HUD), see Pet.

App. at 165a-166a, and because it is Plaintiffs’ “consent” to

OHA’s leases (and not the mandates of the federal law, which

are directed at public housing authorities, not tenants) that

supplied the claimed basis for the evictions at issue, review

should begin with a close examination of the obligations those

leases actually impose. Such an analysis discloses an adequate

basis for concluding that Plaintiffs have a reasonable

probability of success: those leases are fairly read as (a)

obliging OHA tenants only to “do all [they] can” to prevent

household member involvement in drug activity and (b)

limiting OHA’s power to terminate tenancy to instances of

“serious” misconduct, precluding eviction here. Accordingly,

the preliminary injunction may, and under the Court's

precedents, should, be sustained on that basis. See Siler;

Schenk, cf. Alma Motor Co. v. Timken-Detroit Axle Co., 329

U.S. 129 (1946).’

*Because the lease interpretation arguments were presented to - though

not relied on by — the District Court and because the relevant questions are

matters of law (which need only be resolved preliminarily, in any event),

there is no barrier to the Court's affirming the judgment on this basis. Burt

6

B. Respondents Did Not “Consent” To Eviction

Under These Circumstances

The fact that Plaintiffs’ signatures appear on OHA leases

plays a pivotal role in Petitioners’ argument to this Court,

supplying both the ostensible authority for evicting them and a

means of defusing otherwise troubling constitutional

difficulties, see HUD Br. at 47 (arguing that § 1437d(/)(6) “is

constitutional because * * * it provides for consensual lease

clauses”); id. at 17 (characterizing eviction as “enforcement of

Plaintiffs’ contractual commitment”).

At the outset, Amici do not agree that tenant consent would

in any event have the sweeping significance that Petitioners

seek for it. It is, to say the least, unrealistic to describe

Respondents as having “made a choice” when they signed their

leases. See HUD Br. at 46 (asserting that they were “free to

find other housing”). They are poor, elderly individuals paying

monthly rent in the tens and low hundreds of dollars, whose

“option” would be to vacate homes they had inhabited for

decades and seek housing in a market where HUD itself

estimates “fair rents,” to be many times as high. Compare, e.g.,

J.A. 49 (Rucker’s lease, specifying $261.00 monthly rent for

four-bedroom apartment) with 66 Fed. Reg. 50,032 (Oct. 1,

2001) (determining that “fair market” rent for four-bedroom

apartment in Oakland is $2,035.00); see United States v.

Robinson, 721 F. Supp. 1541, 1543 (D. R.L. 1990) (forfeiture of

federally assisted tenant’s leasehold “would be, in effect, a

cf. n.14 infra (discussing District Court's ruling that certain State law

defenses — but not the contract interpretation defense addressed here — were

preempted). Nor is this a case, see Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 95 (1984), where a defendant's Eleventh Amendment

immunity limits injunctive power. Lynch v. San Francisco Hous. Auth., 55

Cal. App. 4th 527 (Cal. Ct. App. 1997) (California housing authorities are

not the State for Eleventh Amendment purposes).

7

sentence of homelessness”). State law attaches diminished

significance to “consent” under such circumstances (especially

when the term consented to is itself an unfair one), see, e.g.,

Ilkchooyi v. Best, 37 Cal. App. 4" 395 (Cal. Ct. App. 1995), and

it is similarly settled that terms attached to governmental

benefits are not insulated from constitutional scrutiny by the

fact that a recipient was free to turn down the “offer,” e.g.,

Frost v. Railroad Comm'n, 271 U.S. 583 (1926).

1. Under Contract Law Principles, The OHA

Leases Do Not Constitute A Tenant’s

“Warranty” That Household Members Will

Refrain From Drug Activity

But there is an even more basic flaw in Petitioners’

argument here. The hypothetical lease they seek to defend in

this Court — one in which it is accepted that “any” drug activity

engaged in by a household member, irrespective of its

seriousness or foreseeability or the tenant’s efforts to prevent it,

can supply the basis for evicting the tenant — is not the one that

the Respondent tenants actually signed with OHA.

The evictions sought here depend primarily on two clauses

in Respondents’ leases. The first, paragraph 9(m), imposes an

obligation to “assure that the tenant, any member of the

household, a guest or another person under the tenant’s control

shall not engage in * * * any criminal activity on or near the

premise{s],” J.A. 59. Paragraph 14(d) delimits when the

Housing Authority “may terminate tenancy”: in cases of “the

Tenant's serious or repeated violation of material terms of this

lease, such as not making payments due, not complying with

paragraph 9, or other good cause.” J.A. 64.

Also significant is an _ instrument, executed

contemporaneously with the leases and titled “Tenant

Agreement to Maintain A Drug-Free Environment.” J.A. 69.

8

By signing that document, the tenant attests to having been told

about OHA and HUD policy regarding drug-related criminal

activity, affirms her awareness of paragraph 9(m), and makes

the following commitment:

I agree to comply with the OHA's policy regarding drugs

and drug-related criminal activity and to do all I can to

prevent the use, sale or possession of drugs in my unit or

the involvement in drug-related criminal activity by my

household or guests. I also agree to inform all my

household members and guests of OHA’'s policy regarding

drugs and drug-related criminal activity.

Id. Because 49(m), when considered together with this

Agreement specifically setting out tenant obligations

concerning drug-related activity, see Cal. Civ. Code § 1642

(multiple writings to be considered single contract); Scudder v.

Perce, 114 P. 571 (Cal. 1911) (specific contract provisions

control general ones), is plausibly understood as obliging

tenants (only) to “do all [they] can to prevent” others’ drug

activity, it must be so construed. See Heston v. Farmers Ins.

Group, 160 Cal. App. 3d 402 (Cal. Ct. App. 1984) (uncertainty

in form contract is construed against drafter); McNeece v.

Wood, 267 P. 277, 284 (Cal. 1928) (“If the agreement can be

reasonably interpreted so as to avoid [a] forfeiture, it is our duty

to do so”).*

“It is axiomatic that these and similar rules governing the construction

and effect of ambiguous terms “enter into and form part of |every contract],

as fully as if they had been expressly * * * incorporated in its terms.”

Norfolk & W. Ry. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117,

130 (1991) (citation omitted).

To the extent that principles requiring deference to administrative

constructions of ambiguous statutes, see Chevron USA, Inc. v. NRDC, Inc.,

467 U.S. 837 (1984), have application in a dispute between contracting

parties concerning the meaning of terms in an agreement between them. they

9

Unlike the surrounding provisions, which impose

straightforward duties “to use the dwelling for private

purposes,” “to keep the dwelling * * * clean,” or “to refrain

from scattering rubbish,” ¥9(m) asks the tenant “to assure” that

certain conduct (unrelated to the tenancy) will not occur.

Although, to be sure, an “assurance” may mean a warranty -

i.e., an undertaking to assume the entire risk that some event

outside the party’s control will occur — that is not its most

common meaning, and it is a singularly implausible one here.

As a brief in this case illustrates, the term “assure” is more

commonly used to refer to an expressed commitment that

increases the listener’s confidence that something will or will

not happen, not as an absolute guarantee. See AMERICAN

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4" ed.

2000) 110. When HUD states that its constructior ¢* *he

statute, if accepted, would enable housing authorities “to assure

the families who make their homes in public housing that they

will have a safe, drug-free environment,” Br. at 18 (emphasis

added), it presumably contemplates housing authorities’ doing

everything reasonably in their power to make certain that the

desired result comes to pass, not their warranting an absolutely

safe environment.°

Here, tenants who both gave their assurance — in the form

of the OHA-drafted “Agreement” — and who fulfilled the

Cannot supercede interpretive rules designed to encourage clear drafting and

protect promisors from unfair surprise. A tenant's acknowledgment that she

was “told about” HUD regulations by a housing manager, J.A. 69, although

conceivably raising case-specific factual questions, does not detract from this

general point.

‘Similarly, when the federal government invoked its “dury to provide

public * * * housing that is decent, safe, and free from illegal drugs” 42

U.S.C. § 1437b(aX(1), it presumably did not take upon itself legal

responsibility for every subsequent “breach.”

10

substantive obligations described therein, “[!] to comply with

the OHA’s policy * * * [2] to do all [they] can to prevent

[others’] drug-related criminal activity * * * and [3] to inform

* * * household members and guests of OHA's policy,” could

justifiably conclude that they had fulfilled their obligations

under {9(m).°

Nor, as is explained more fully below, is it right that a

“covenant” of the sort HUD defends would be fundamentally

similar to others that appear in tenants’ leases with OHA. See

HUD Br. at 23, 24 (citing, inter alia, {9(k), which provides that

“[tJenant shall pay such charges for * * * repair[s}* * * made

necessary by the action(s) or neglect of the Tenant, members of

the household or guests” and 49(g), which obliges tenants “[t]o

keep [the) dwelling unit and such other areas as may be

assigned to the tenant * * * in a clean and safe condition,”

including “causing members of the household and guests” to do

so); see also id. at 35 (analogizing to liability without fault,

citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991)).

The “responsibility” that Petitioners contend that {9(m)

impos 5 would be unlike those neighboring lease clauses — not

because it is indifferent to the tenant's “state of mind,” HUD

Br. at 30, 33 — but rather because it would not be fairly

*The tenant's undertaking to “cause” desirable behavior by guests and

household members must likewise be interpreted in light of its basic parallel

with the Agreement. Compare J.A. 59 (“the tenant is obligated to comply

with * * * and is responsible for causing members of the household and

guests to comply with” OHA rules) with J.A. 69 (providing that the tenant

personally “comply * * * and do all (she) can” to control others). Although

the Agreement also asks the tenant to indicate “aware(ness}" that she “may

be evicted,” on account of a household member's drug activity, id., that

acknowledgment is fairly read, in context. as referring to the possibility of

eviction based on other parties’ conduct thar the tenant has failed to do all

that she could to prevent.

described as addressed to acts or onmiiss ons of the tenant. See

Seid Pak Sing v. Barker, 240 P. 765 (Cal. 1925) (applying

“noscitur a sociis” maxim in interpreting lease). Unlike a

regime of liability without fault - where the defendant is held

monetarily liable for damage she causes, without further inquiry

into motive or negligence — or lease obligations that impose

duties relating to the use of the premises the landlord has

conveyed to the tenant, the construction of 49(m) for which

Petitioners argue is as a “warranty,” whereby the tenant

assumes an “obligation,” to see that events that are

unforeseeable and outside her control never occur. Harris v.

Klure, 205 Cal. App. 2d 574 (Cal. Ct. App. 1962)

(“interpretation should be avoided which will make the contract

unusual, extraordinary, harsh, unjust or inequitable”).’

Indeed, it may be because such an obligation is so

uncommon that Petitioners’ Briefs repeatedly resort to the

language of culpable action in describing OHA's grievance

with Respondents. See, e.g., HUD Br. at 16 (describing policies

as aimed at tenants who “harbor” “drug criminals”); OHA Br.

at 3 (same). But see, e.g., People v. lson, 346 N.W.2d 894, 897

"As the District Court recognized, Pet. App. 85a-86a. obligations that

relate to the use of the unit inherently incorporate an element of tenant

control — both because the tenant can limit access to the unit and also

because such duties typically are within the tenant's power to perform

himself, if efforts to “cause” others to do so are unavailing.

Nor is the Haslip analogy apt: although that decision dealt with a form

of “vicarious” (i.¢., employer) liability. it involved conduct that, under

common law agency principles, was that of the corporate defendant. 499

U.S. at 14. Moreover, rules of strict tort liability are grounded on

assumptions that it is more just and efficient to shift the costs of injury from

the injured party to the party whose actions caused harm. See 2 F. HARPER

& F. JAMES, THE LAW OF Torts (1956). These rationales likely support

entirely different rules in a case where the parties are, respectively. a public

housing tenant and a government agency.

12

(Mich. App. 1984) (“intent to encourage, counsel, or assist * *

* in evading lawful custody” is element of a harboring offense):

United States v. Foy, 416 F.2d 940, 941 (7° Cir. 1969).

2. Only “Serious or Repeated” Violations Give Rise To

Eviction Under OHA’s Lease

But even if it could be concluded that any drug activity by

any household member anywhere can be a violation of the

tenant’s { 9m) obligation to “assure” - and if such an

interpretation were constitutionally and statutorily permissible

— OHA's lease limits its authority to evict to “serious or

repeated violations of material terms of this lease, such as not

making payments, not complying with paragraph 9, or other

good cause.” ¥14(d) (emphasis added). Thus, although HUD

has taken the position that the statute authorizes eviction for

“any” household member drug activity - and not merely

“repeated or serious” activity, HUD Br. at 33 (citing 56 Fed.

Reg. at 51,567) — that is simply not what OHA’s agreement

with its tenants provides."

"Realistically, ¥14(d) can only be read as limiting eviction to cases

where breaches of $9(m) are “serious or repeated.” Because 9(m) falls

within “paragraph 9,” a violation could not constitute “other good cause,”

nor can the lease be read as making “not complying with 99" per se a

“serious * * * violation.” ee eee Sees

ee Se ee eee not only

doubtful (rendering authority to evict for “repeated”

violations superfluous) but, to pronounce every violation of {9 “serious”

would drain that term of its plainly intended effect as a limitation on landlord

power. See Diversified Realty Group, Inc. v. Davis, 628 N.E.2d 1081, 1085

(Ill. App. 1991) (similar language in Section 8 lease was “clearly intended

to give tenant * * * some measure of objective protection”).

Nor can the sentence in 414(e) indicating that “Management also

considers * * * any drug-related activity on or near such premises by Tenant,

members of household, or guests as grounds for termination under this

provision” be read as relaxing the restraint of 414(d). That statement. made

13

Whether the “serious[ness]” of a violation of {9(m) is to be

gauged with reference to the personal culpability of the tenant.

see {14(d) (eviction triggered by “the Tenant's serious or

repeated violation(s]”) (emphasis added), the gravity of the

underlying drug activity, or, most reasonably, some

combination of both, eviction would be unauthorized here. If

the focus is on the tenant's personal culpability, the record, as

it stands, establishes that, far from a “serious violation,” there

was no breach of Respondents’ assurances to OHA that they

would “do all [they could] do to prevent” drug activity.

Nothing contradicts their sworn statements (1) that they did not

know of, participate in, foresee, or condone the drug activity of

their children and grandchildren, and (2) that they acted

affirmatively to prevent and warn against drug activity, see J.A.

31, 34, 39, 44.

Nor could Plaintiffs fairly be expected to understand that

a single incident of marijuana possession by a teenage

grandchild was the sort of “serious” misconduct that would

terminate their tenancy.’ Ticor Title Ins. Co. v. Employers Ins.,

40 Cal. App. 4" 1699 (Cal. Ct. App. 1995) (words of contract

are to be understood according to their ordinary and popular

meaning). Under federal law, possession of a personal use

amount of marijuana is punishable by a civil penalty only, 21

U.S.C. §844a(A). California has gone farther still,

“decriminalizing” possession of small amounts, A & B Cattle

in the lease part dealing with notice, only confirms that when drug-activity

evictions are properly pursued (i.¢.. when the requirements of 14(d) are

satisfied), they will be sought on the fast-track, with no more notice provided

than the minimum “reasonable under the circumstances.”

*Neither of the teenagers “ha{d) any prior arrests or other incidents

involving marijuana or other drug use or possession.” Plaintiffs’

Memorandum in Support of Motion For Preliminary Injunction, Rucker v.

Davis, No. C-98-00781 (N.D. Cal. Apr. 3, 1998) at 25.

14

Co. v. City of Escondido, 192 Cal. App. 3d 1032, 1042 n.14

(Cal. Ct. App. 1987), to the point where a $100 fine is the

maximum punishment for a first offense, Health & Safety Code

§ 11357(b), and it is illegal for an employer to consider a

prospective employee’s prior record under that statute. Lab.

Code § 432.7; of BMW, 517 U.S. at 583 (measuring

excessiveness of punitive damage award by “comparing [it] to

civil and criminal penalties that could be imposed for

comparable misconduct”). According to recent U.S.

Government estimates, 76 million Americans — including

43.5% of all 18 year-olds — report having tried marijuana at

some point in their lives. See http://www.samhsa.gov/oas."'

"Compare also United States v. Leasehold Interest in 121 Nostrand

Ave., 760 F. Supp. 1015, 1026 (E.D.N.Y. 1991) (noting that under HUD and

Justice Department Guidelines, the United States would seek forfeiture under

21 U.S.C. § 881(a)(7) only if a property was an “open and notorious site of

drug distribution,” where “compelling evidence” establishes “at least two

drug felonies,” and were the leaseholder him- or herself was involved in the

criminal conduct). Moreover, even where those stringent conditions were

satisfied, the Guidelines provided for “[c)areful consideration” of “factors

involving family members of the violator” and required that “[a)ppropriate

human resource services support (i.e. child welfare, emergency shelter, etc.)

* * * be prearranged where minors or the elderly are [a}ffected,” id.

"Although Rucker’s (disabled) daughter was found in possession of

cocaine, which local law punishes more harshly than simple marijuana

possession, her case implicates a further way in which OHA's actual terms

are less stringent than those Petitioners defend. OHA tells tenants that the

“One Strike” policy is limited to instances of illegal drug use that “interfere[]

with the health, safety, and peaceful enjoyment of the premises by other

residents.” J.A.69. See HUD Br. at 43 (describing precisely that limitation

as a “considerably stricter standard for cause for eviction” than the one

defended here).

Because proof of “interference” with residents is required, the

daughter’s “drug activity” -— possession off premises (the cocaine was

discovered during a search incident to arrest for a suspected alcohol offense)

15

Against this background, intimations that these tenants were

“harbor[ing) drug criminals,” HUD Br. at 16, or allowing their

units to become “haven(s] for drug users and dealers,” id. at 30

— or that their eviction was necessary to “rid public housing

projects of those whose tenancy threatens the safety and

security of their neighbors,” id. at 48-49, ring decidedly hollow.

Cf. Hann v. Easton Hous. Auth., 709 F. Supp. 605, 609 (E.D.

Pa. 1989) (rule against cohabitation by unmarried tenants would

“exclude such a large number of people from rental assistance

[as to] be unconscionable”). '?

C. Eviction Under These Circumstances Would Not Be

“Ordinary”

Even laying aside the peculiarities of the leases that

actually gave rise to this case, Petitioners’ arguments proceed

from another faulty premise: that the (hypothetical) lease terms

defended are commonly found in residential leases, and that, if

consented to by a tenant, they would, as a matter of contract

law, be strictly enforced.

~ can not qualify. See Decatur Hous. Auth. v. Brown, 349 S.E.2d 501, 503

(Ga. App. 1986) (sustaining conclusion that “the mere violation of marijuana

Possession even on two occasions (neither) creates a hazardous situation for

other tenants nor interferes with their peaceable possession”); accord Jersey

City Hous. Auth v. Jackson, 749 F. Supp. 622, 633 (D. N.J. 1990); see also

Boston Hous. Auth. v. Bryant, 693 N.E.2d 1060 (Mass. App. 1990).

"Both Petitioners fault the decision below for considering factual

situations other than those actually before the court in construing the statute.

But their own Briefs strain visibly to assimilate the misdemeanor conduct

that gave rise to this case to that which impelled Congress to act. For

example, rather than quote directly the congressional finding that “drug

dealers are increasingly imposing a reign of terror,” (emphasis added), HUD

(perhaps mindful of the absence of drug dealing allegations from this case)

describes Congress's having found a “‘reign of terror’ caused by the

presence of drug criminals,” Br. at 44 (emphasis added).

ee

16

Although Amici cannot represent that such a “covenant” is

without precedent, the very features that HUD defends -

forfeiture based on third-party conduct, however minor, that is

unforeseeable and outside tenant’s control, that in no way

relates to the unit itself, and poses no genuine threat to other

tenants’ health, safety or property interests, See Br. 33, 40 - are

unlike the examples they cite as analogous, uncommon in

Amici’s experience, and in derogation of both historic and

modern rules of landlord-tenant law. See, e.g.,R. SCHOSHINSKI,

AMERICAN LAW OF LANDLORD & TENANT (1980) (at common

law, lessor had little control of tenant’s use of property); Minn

Stat. § 504B.171 (imposing uniform lease covenant against

“allow[ing] controlled substances in th[e] premises,” but

limiting violations to cases where tenant “knew or had reason

to know of [third-party’s possession]”’).

Although tenants are routinely held (financially) liable for

damage done to leased premises, including by guests and family

members, and can be subject to eviction for using a landlord’s

property in a way that threatens harm to others, it is not

“common” for a lease to provide for eviction for an isolated

illegal act, see Restatement (Second) of Property § 12.5

comment c, especially a minor one, Rowe v. Wells Fargo Realty

Servs., Inc., 166 Cal. App. 3d 310, 319 (Cal. Ct. App. 1985)

(declining eviction for commercial tenant’s “minor regulatory

violation”) — let alone to regulate tenant conduct that is off-

premises and unrelated to his tenancy. Machias Hotel Co. v.

Fisher, 56 Me. 321 (1868) (refusing to terminate lease of

defendant convicted of selling intoxicating liquor off-premises),

64 Park Ave. Corp. v. Blum, 78 N.Y.S.2d 818 (Sup. Ct. App.

Term 1943) (lease provision has “no application to conduct or

acts committed off the demised premises”); Richmond Tenants

Org., Inc. v. Richmond Redev. & Hous. Auth., 751 F. Supp.

1204, 1206 (E.D. Va. 1990) (prohibiting eviction for off-

17

premises alcohol misconduct, because “it is unreasonable to

make misdemeanors, even if repeated, grounds for eviction,

when the offense bears no relation to the housing

development”); see also R. SCHOSHINSKI § 6.1 at 377 (at

common law, damages provided sole remedy for lessee's

breach of covenant)."”

"'-HUD’s suggestion that evictions (of whole families) for single minor

infractions off premises are protective of “health and safety,” on the ground

that individuals who engage in such are “not unreasonab[ly]” presumed

likely to commit anti-social acts on premises, Br. at 45, runs the nuisance

analogy into the ground. Jurisdictions that try seriously to tie evictions to

ongoing danger require a far greater showing than HUD could make in these

cases. See Tenement House Dep't v. McDevitt, 109 N.E. 88 (N.Y. 1915)

(Cardozo, J.); of Spence v. Gormley, 439 N.E.2d 741, 750 (Mass. 1982)

(acknowledging that eviction even for violent conduct is unnecessary if the

offending individual has subsequently been incarcerated).

As did the dissent below, Petitioners have invoked a litany of

justifications for a policy of the sort they defend. At least one of the stated

objectives - deterring potential drug criminals with the threat that their

innocent relatives will suffer forfeiture, far from being “worthwhile,” HUD

Br. at 36, is constitutionally pernicious. See Weber v. Aetna Casualty &

Surety Co., 406 U.S. 164, 175 (1972); Plyler v. Doe, 457 U.S. 202, 220

(1982) (however “expedient,” acting against children for parents’

wrongdoing was unconstitutional). A second rationale — enhancing housing

authority “bargaining power” to “obtain [a tenant's) agreement” HUD Br. at

36, to sanctions short of eviction ~ is puzzling. The same objective surely

could be accomplished without ever dropping the Damoclean sword on

innocent individuals: ¢.g., with a lease term providing, in substance, “tenant

agrees with all steps (short of eviction) that landlord proposes to deal with

drug activity.”

Finally, assertions about the “enormous” difficulty of proof, HUD Br.

at 35-36 are, at the least, overwrought. While the argument seems to assume

that housing authorities would be confined to relying on direct evidence,

even in a criminal prosecution - where proof beyond a reasonable doubt is

required - “all elements * * * can be proven by * * * circumstantial

evidence.” United States v. Poole, 878 F.2d 1389, 1391-92 (11" Cir. 1989);

see id. (“Evidence of surrounding circumstances can prove knowledge.

18

And the assumption that eviction would proceed on the

ground that “a deal is a deal” fails to do justice to the contract

principles that Petitioners insist should govern. First (even in

the absence of ambiguities), it is settled law that not every

breach of a contractual term will be considered “material,” and

courts considering contract claims will hold a promissee’s

obligations satisfied by substantial performance, See Superior

Motels, Inc. v. Rinn Moter Hotels, Inc., 195 Cal. App. 3d 1032,

1051 (Cal. Ct. App. 1987) (“The law sensibly recognizes that

* * * not every breach justifies treating the contract as

terminated”’) (citations to Restatements and treatises omitted);

Keating v. Preston, 108 P.2d 470 (Cal. Ct. App. 1940)

(violation of implied covenant not to use premises for gambling

was so “slight and trivial * * * that it does not constitute ground

for terminating the lease”); Restatement (Second) of Contracts

§ 241 (in deciding whether breach is material, court should

consider, inter alia, whether promisor fulfilled duty of good

faith and fair dealing and “extent to which the party failing to

perform * * * will suffer forfeiture”).

And the notion that a contracting party will not be liable

for breach of a condition when the reasons for nonperformance

were unforeseeable and beyond her control is not an innovation

of the district court in this case: it is a staple of contract law.

See Restatement (Second) of Contracts § 265; cf. McNeece, 267

P. at 285.

Further, a tenant’s “consent” to subject herself to

eviction for a grandchild’s minor, harmless and unforeseeable

[PJossession * * * can be established by showing ownership or dominion and

control over the drugs or over the premises on which the drugs are

concealed. Intent to distribute can be proven circumstantially from * * * the

quantity of [drugs] involved”); see also Spence v. O'Brien, 446 N.E.2d 1070

(Mass. App. 1983).

19

misdemeanor — the “bargain” HUD hypothesizes — would not

necessarily be given conclusive effect. The fact of consent does

not preclude a court from inquiring whether a contract or a

particular term is unconscionable, especially where the parties’

bargaining power is, as here, highly unequal. See Civ. Code §§

1567, 1670.5 (on finding clause unconscionable, court may

“limit [its] application * * * [so] as to avoid any unconscionable

result”); Leonedas Realty Corp. v. Brodowsky, 454 N.Y.S.2d

183 (Civ. Ct. 1982) (holding “singles only” lease provision

unconscionable, citing county’s 2% vacancy rate).'*

Principles of contract interpretation also foreclose

enforcement of even agreed-to penalty clauses. See, e¢.g.,

Perdue v. Crocker Nat'l Bank, 702 P.2d 503 (Cal. 1985); Cal.

Civ. Code § 1671. Resistance to such clauses is grounded not

only on considerations of fairness, but also on recognition that

“The District Court ruled, erroneously in our view, that a California

law unonscionability defense would be preempted here, see Pet. App. at 8 la-

82a. At the outset, a court would not be applying “contract principles” were

it to hold those rules “preempted” in any instance where their neutral

application would operate to defeat eviction. See Cincinnati Metro. Hous.

Auth. v. Harris, 1983 WL 8893 (Ohio App. June 15, 1983) (“when a public

housing agency * * * uses the courts of this state to enforce a remedy made

available by the state, viz, forcible entry and detainer * * * it subjects itself

to those powers, legal and equitable. which state law reposes in its courts

with respect to such actions”). Congress did not expressly provide for

preemption, and there is no actual conflict between a provision that requires

inclusion of lease terms — but does not “require{] or encourage{] * * *

terminations,” 66 Fed. Reg. 28,782, and a court’s applying contract or

equity principles in any particular case. Although it is conceivable that a

State common law rule could so frustrate Congress's aim of ending drug

dealers’ “reign of terror” in public housing as to warrant preemption,

congressional purposes are furthered, not disserved by exercises of judicial

discretion. See infra. But see City of South San Francisco Hous. Auth. v.

Guillory, 41 Cal. App. 4th Supp. 13 (Cal. Super. App. 1995) (giving very

broad preemptive effect to federal law).

mE

20

parties do not always expect the penalties to be imposed, Steele,

v. Branch, 40 Cal. 3, 11 (1870), and concern that they not have

perverse incentives to seize on minor breaches, see Ross v. Gulf

Oil Corp., 522 A.2d 97 (Pa. Super. 1987).

Essentially similar concerns inform the traditional

reluctance to enforce forfeiture conditions in leases. See, e.g.,

Cal. Civ. Code § 1442. Not only are such claims scrutinized

under an especially rigorous version of the rule of construction

against the drafter, see Miller v. Reidy, 260 P. 358 (Cal. Ct.

App. 1927) (“[hJe who claims a forfeiture must have closed

every avenue of escape to his opponent’”’), but courts asked to

impose a forfeiture will be more willing to overlook minor

violations, Steele, 40 Cal. at 11 (“the law abhors a forfeiture,

and therefore will ordinarily be satisfied with a substantial

compliance of a [forfeiture] condition”), and will refuse to

impose [] forfeiture if the landlord’s legitimate interests could

be served through a less drastic remedy. See Powell v. Franco,

684 N.Y.S.2d 226 (App. Div. 1999); 1021-27 Ave. St. John

Housing Dev. Fund Corp. v. Hernandez, 584 N.Y.S.2d 990

(Civ. Ct. 1992) (noting authority distinguishing between “cases

which warrant the forfeiture of the subject premises [and] those

which have fashioned relief other than forfeiture”); see also

Gorsuch Homes, Inc. v. Wooten, 597 N.E.2d 554, 561 (Ohio.

App. 1992) (“Ohio courts have the power, and often exercise it,

to relieve a tenant from the consequences of forfeiture’); Mid-

Northern Mgmt, Inc. v. Heinzeroth, 599 N.E.2d 568, 572 (Ml.

App. 1992) (similar).

Whether such judicial intervention is considered an

exercise of equitable power or enforcement of a legal rule

implied in every contract, it would likely rule out eviction here,

even if tenants’ leases were as HUD has assumed them to be.

See Knight v. Black, 126 P. 512 (Cal. Ct. App. 1912) (“the very

nature of the action, involving, as it does, a forfeiture, appeals

21

to the equity side of the court, and * * * requires a full

examination of all of the equities involved to the end that exact

justice be done”); McNeece, 267 P. at 285 (“it would * * *

appear to be highly inequitable to forfeit the lease on account of

one act of unlawful possession on the part of the employee of

the sublessee in the absence of some notice or knowledge of the

infraction of the law on the part of the lessee or his

subtenant”).'®

Finally, although there is no need to settle this case on

constitutional grounds, it bears emphasis that these common

law and equitable considerations converge substantially with

concerns articulated in recent decisions of this Court construing

'*The punishment sought here is in gross disproportion to the wrong,

however described. In strictly economic terms, Respondents’ housing

subsidies are worth thousands of dollars. See Carroll v. Housing

Opportunities Comm'n, 510 A.2d 540, 545 (Md. 1986). But the less

quantifiable effects of being evicted from one’s home of thirty years — being

uprooted from work and childcare arrangements, friends and family — can be

equally serious. Finally, poor families — stamped with the stigma of drug

eviction — face almost insurmountable odds in tight housing markets. See E.

Lindblom, Preventing Homelessness, HOMELESSNESS IN AMERICA (J.

Baumohl, ed. 1996) at 189 (stressing link between evictions and family

homelessness).

Although Petitioners suggest that the policies amount to little more than

a routine reallocation of a scarce governmental resource (housing assistance)

- from “drug criminals” to “some of the numerous households [on waiting

lists] who would not pose a similar threat,” see HUD Br. at 16 — that line of

argument is unworthy of Petitioners. Even putting aside empirical doubts

that new tenants (and grandchildren) will — whatever assurances they give -

prove more able to live up to the Government's standards of rectitude than

those evicted, there can be no equivalence, from a tenant's standpoint,

between being evicted and failing to more swiftly climb a waiting list for

desired housing. But see OHA Br. at 43 (analogizing eviction in these cases

to “recission,” where tenant is “return[ed] * * * to as good a position as that

occupied * * * before the contract was made”).

22

the Due Process Clause. For example, BMW, in determining

that a jury’s punitive damage award was so “grossly excessive”

as to offend the Constitution, identified these guideposts: “the

degree of reprehensibility of the [tort]”; “the disparity between

the [punishment and] the harm or potential harm [the tort

caused]; and the “difference between this remedy and civil

penalties authorized or imposed in comparable cases.” 517

U.S. at 574-75; see also id. (explaining that degree of

reprehensibility, “perhaps the most important indicum of

reasonableness of punitive damages,” is “associated with”

physical, as opposed to economic, injury; intentional, rather

than careless, wrongdoing; and recidivism — i.e., “repeatedly

engag[ing] in conduct, knowing or suspecting that it was

unlawful”). They are precisely the same sort of considerations

that Petitioners in this case insist housing authorities may freely

ignore when making eviction decisions. See infra; but see

Bennis, 516 U.S. at 457-58 (Ginsburg, J., concurring)

(identifying State courts’ consideration of individual equities as

“key” to decision and suggesting that suspension of equitable

limitations would raise distinct Due Process concerns)."®

'*Similarly, the recently enacted Civil Asset Forfeiture Reform Act,

Pub. L. 106-185, requires the U.S. government to establish a “substantial

connection between the property [forfeited] and the offense,” see Bennis,

516 U.S. at 454 (Thomas, J., concurring), and protects from deprivation

under “any civil forfeiture statute,” the property interests of innocent owners

— including those who “(i) did not know of the conduct giving rise to

forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture,

did all that reasonably could be expected under the circumstances to

terminate such use of the property,” 18 U.S.C. § 983(d)(2)(a). See also id.

§ 983 (d)\(2)(B) (prohibiting forfeiture of property acquired from

wrongdoing spouse if forfeiture “would deprive [innocent spouse] of the

means to maintain reasonable shelter in the community for (that spouse] and

all dependents residing with [him or her]").

23

Il. The Statute Is Not Reasonably Construed As

Authorizing Respondents’ Eviction

For the reasons explained above, this case does not require

this Court to resolve the constitutionally sensitive questions of

federal statutory interpretation that divided the court below. In

view of the actual lease terms and specific procedural posture,

even an opinion accepting in toto HUD’s construction of the

statute would not impeach the propriety of the preliminary

injunction. See Chevron, 467 U.S. at 842 (“[T]his Court

reviews judgments, not opinions”).

But even if these peculiarities did not threaten to make an

opinion construing the statute largely advisory in character, the

Court may and should sustain the preliminary injunction,

without addressing the broad question that HUD strenuously

presses upon it, i.e., whether the Affordable Housing Act must

be construed (as it largely was by the appeals court majority) as

making tenant innocence an absolute bar to drug-activity

eviction.

While there is compelling support, Amici submit, for that

construction of the statute, the order preliminarily enjoining

Respondents’ eviction did not rest on that ground and it needs

no such broad rule of law in order to be sustained.'” Rather, the

outcome-determinative legal question here is more narrow:

whether, as Petitioners maintain, housing authorities (and

courts) are at liberty to ignore innocence and other relevant

individual circumstances in opting to pursue eviction.

Indeed, the sharp wording of the opinions below should not

obscure important ways in which the meaning of § 1437d(/)(6)

"In its preliminary injunction ruling, the district court declined to

recognize a categorical innocent tenant defense, extending to drug activity

that occurred inside tenants’ apartments. Pet. App. 166a.

24

is NOt Open to genuine dispute. First, there can be no real

disagreement that cases such as Respondents’ fall far from the

core concerns that led to enactment of the provision. The

congressional finding that framed this provision refers to a

“reign of terror” imposed by “drug dealers,” 42 U.S.C. §

11901(3) (emphasis added), and President Clinton's message

calling for a “One Strike” initiative similarly reasoned that

residents who “peddle drugs” (not those who use them - let

alone the grandparents of those individuals) should be evicted,

see 32 Weekly Comp. Pres. Documents 584, 585 (Mar. 28,

1996); Bajakajian, 524 U.S. at 323 (“Whatever his other vices,

respondent does not fit into the class of persons for whom the

Statute was principally designed: He is not a money launderer,

a drug trafficker, or a tax evader’”); cf. OHA Br. at 3.

Second, it is common ground that Congress did not

contemplate — and the statute does not require — eviction of

every tenant with a household member who has engaged in drug

activity. See HUD Br. at 20-21 (under HUD’s construction

“Section 1437d(/)(6) requires [a certain lease provision] * * *

* not that the public housing authority must invoke that clause

and terminate tenancy in all cases — or in any particular case —

of drug-related criminal activity’”).'*

""HUD’s confidence that housing authorities, if left to their own

devices, would have “[I)ittle incentive,” Br. at 45. to evict inequitably seems

unfounded. First, housing authorities have a direct financial incentive to

maintain an aggressive eviction program: HUD's funding formula. See 24

C.F.R. § 901.45(c) (providing for grading down for failure “to document

results in appropriately evicting” under lease term). Moreover, as

Petitioner's Brief stresses, id. at 16, housing authorities’ waiting lists contain

many tenants who - if no less likely to have children or grandchildren who

will at some time smoke marijuana, see supra - are more “desirable” to the

Housing Authority in other ways, including their ability to pay rent. See 42

U.S.C. § 1437n; id. § 1437n(aX(3)(B ii) (authorizing incentives for higher

income tenants “to occupy dwelling unit in projects predominantly occupied

25

Nor is there any fundamental disagreement as to the

particular factors that bear on the (in)appropriateness of

eviction in any individual case — or that innocence is (at least)

prominent among them. The most recent version of HUD’s

regulations explains that denying dispositive weight to a

tenant’s innocence does not mean that the PHA should not

consider all of the circumstances of the case, including the

seriousness of the offense, the extent of participation by

family members, and the effect that eviction would have on

family members not involved in the prescribed activity and

the extent to which the leaseholder has shown personal

responsibility and has taken all reasonable steps to prevent

or mitigate the action.

24 C-F.R. 966.4([)(S)(vii)(B); see also id. (noting availability of

remedies short of evicting innocent family members); H. R.

Rep. 101-559 (1990) (enumerating similar factors). The Senate

Committee described the provision as “mak[ing] criminal

activity grounds for eviction of public housing tenants if that

action is appropriate in light of all the facts and circumstances,”

S. Rep. 101-316 at 179 (1990) (emphasis added), further

explaining that eviction “would not be the appropriate course,

if the tenant had no knowledge of the criminal activities of

his/her guests or had taken responsible steps under the

circumstances to prevent the activity.” id.

Finally, there can be no real disagreement that

individualized consideration of these factors in Respondents’

cases would strongly militate against eviction, and in the cases

by * * * families having lower incomes”).

In any event, an argument that discretion will seldom be abused is not

an argument against independent review for abuse — or against granting relief

when it has been.

ee —_--—--—-——c lo i

26

of Lee and Hill — tenants of longstanding, “charged” with

having teenage grandchildren who, on a single occasion,

possessed marijuana outside their apartments — the question

would not even be a close one. See Inter-Modal Rail

Employees Ass'n v. Atchison, Topeka & Santa Fe Ry. Co., 520

U.S. 510, 516 (1997) (even unambiguous statutory words will

be disregarded if they will produce a “glaringly unjust result”).'°

Accordingly, Petitioners’ attack on the lawfulness of the

preliminary injunction depends less on the tenability of their

contention that Congress conferred some “discretion” to evict

tenants who are not individually culpable, than on their

establishing that the statute conveyed authority of a very

different sort: “discretion” to disregard innocence and evict in

cases where that and every other individual circumstance would

Whether or not Congress intended to confer the former sort

of authority, this statute simply may not be read as conferring

“discretion” of the second, highly unusual kind. See Kickapoo

Tribe v Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995) (“The

exercise of discretion contemplates reasoned decision making

on the basis of relevant and appropriate considerations to the

task at hand”); Allegheny County Hous. Auth. v. Hibbler, 748

A.2d 786, 790 (Pa. Comm. Ct. 2000) (affirming judgment

'*Although Rucker’s case presents different and arguably less starkly

one-sided equities, her eviction was plainly unauthorized by the lease, and

as Petitioners note, OHA has opted not to pursue a termination in her case.

HUD asks the Court to “presum{e],” Br. at 8, that OHA’s decision to

discontinue proceedings against Rucker is proof that OHA is appropriately

exercising its discretion under the statute, but there is no evidence in the

record that even that decision - let alone the decisions to go forward against

Hill and Lee — was “based on a consideration of the factors enumerated by

HUD.” See OHA Br. at 45 (asserting that discretion was exercised in

Walker's and Rucker’s cases).

27

denying eviction on ground that the “housing authority must

consider all circumstances, including mitigating circumstances,

when deciding whether to evict”).

Not only did Congress identify the relevant factors, but it

was not silent as to the necessity of individualized

consideration. The House Committee stated that the eviction

decision “should require the consideration of all facts and

circumstances,” and the Senate Committee described §

1437d(D(6) as “making criminal activity grounds for eviction

of public housing tenants if that action is appropriate in light of

all the facts and circumstances,” S. Rep. 101-316 at 179

(emphasis added); see also id. 179 (“eviction would not be the

appropriate course * * * if the tenant had * * * taken

responsible steps under the circumstances to prevent activity”).

Although HUD, see Br. at 44, creatively distinguishes between

what Congress thinks is “appropriate” under a statute and what

it authorizes, such a distinction does not help where, as here, the

same term — “appropriate” — is used to describe when, under the

statute, criminal activity is “grounds for eviction.””

To allow eviction of individuals in Respondents’

circumstances — in the teeth of the compelling individual

equities (and this clearly expressed congressional intent) to the

contrary — would be at least an unreasonable interpretation of

HUD also argues that the Senate Bill was “quite different” from the

legislation enacted. Br. at 43. But the difference identified has nothing to

do with the tenant's culpability - relating instead to the entirely distinct

factor of the gravity of the household member's conduct (the Senate version

having expressly limited eviction to cases where drug activities “threaten the

heath or safety of, or right to quite enjoyment of the premises by, other

tenants”). OHA's attempt to blunt the force of the Senate Committee

language is less elegant: it simply changes “would not be appropriate” to

“might not be,” Br. at 19.

28

the statute, and quite probably an unconstitutional one. The

deprivations that Petitioners seek to effect are not only far from

the heartland of congressional concern, but they would

represent a troubling deviation from the Nation’s forfeiture

tradition. Unlike governmental actions that this Court has held

to be historically sanctioned, Respondents’ leasehold was not

“used” in the commission of the (misdemeanor) offenses. See

generally Bennis, 516 U.S. at 455 (Thomas, J., concurring) (in

constitutional challenge by an innocent owner, strict adherence

“to historical standards for determining whether specific

property is an ‘instrumentality’ of crime” is appropriate). And

while construing the statute as authorizing action against

innocent individuals would in itself raise serious constitutional

difficulties, see Solid Waste Agy. v. U.S. Army Corps of

Engineers, 531 U.S. 139, 172 (2001), reading it as authorizing

complete disregard for innocence (and other similarly relevant

factors) would almost surely place it on the other side of the

constitutional line. Bennis, 516 U.S. at 457-58 (Ginsburg, J.,

ing).

Moreover, although Petitioners make an awkward case that

some housing authority discretion can, as a logical matter,

coexist with the “innocent owner” defense made available when

the federal government seeks forfeiture of the same public

housing leasehold based on the same drug activity, see HUD Br.

at 28-29, reading the statute to authorize complete disregard of

individual circumstances would not fulfill the judicial

responsibility “to make sense, rather than nonsense out of the

corpus juris.” West Va. Univ. Hosp., Inc. v. Casey, 499 U.S.

83, 100 (1991). Even if the U.S. Code did not provide an

innocent public housing tenant with quite as much protection as

an innocent owner of other property — or even with as much

protection as another public housing tenant against whose

property the United States, rather than a housing authority, has

29

elected to fiove < fi Must be read to minimize the danger that

less blameworthy individuals, whose property is less closely

connected to less s€rious criminal activity will suffer greater

dispossession.”'

Finally, even if it were somehow construed as vesting

housing authorities with unusually broad discretion to seek

eviction, the statute simply cannot be construed as divesting the

judiciary of power to exercise independent judgment, as a

matter of equity or State law, and deny the drastic remedy the

public landlord sought. See, e.g., Porter v. Warner Holding

Co., 328 U.S. 395, 398 (1946) (“Unless a statute in so many

words, or by a necessary and inescapable inference, restricts the

"Efforts to distinguish the lease forfeiture and eviction provisions,

which originated in the same subtitle of the same statute, Pub. L. 100-690,

Subtitle C, based on the differing identities or “capacities,” Br. at 29-30, of

the governmental entities seeking forfeiture — or the differing “procedural

protections” involved — do not stand up to close scrutiny. To begin with, the

purposes of the two regimes overlap substantially: the government's “law

enforcement capacity,” HUD Br. at 29, is not obviously different from

housing authorities’ asserted interest in “deter{ing] drug-related criminal

conduct,” id. at 36, and “protecting the security of the housing project.”

Moreover, the re-written forfeiture statute has imposed a higher burden of

proof and has provided specific hardship-based protection for “residences”

of spouses of individuals against whom the Government proceeds. Thus.

under HUD's construction, the spouse of a notorious drug felon has greater

protection against displacement than would a public housing tenant who has

done all that she can to prevent her grandson's one-time use of marijuana.

Similarly, although Petitioners discuss the former provision allowing

for admission to public housing of individuals who were evicted on account

of family member drug activity, see 42 U.S.C. 1427d(c)4)(A)iii)( 1994),

solely as proof that Congress must have contemplated eviction of some

innocent tenants, they overlook «a much more basic substantive

embarrassment: it would be fundamentally irrational for Congress to have

provided that the same families who would, under Petitioners’ reading, be

routinely evicted from public housing would promptly be entitled to

preference on seeking readmission.

30

court's jurisdiction in equity. the full scope of that jurisdiction

is to be recognized and applied): see also City of Chicago v.

International College of Surgeons, 522 U.S. 156 (1997). To

say the least, the statute does not include the clear congressional

statement necessary to accomplish that unusual and disfavored

result, and the pertinent legislative history is, once more,

specifically and explicitly to the contrary. See S. Rep. 101-316

at 179 (indicating that “each case will require the wise exercise

of humane judgment by * * * the eviction court”) (emphasis

supplied).

Conclusion

Because there is no basis for disturbing the lower courts’

conclusions that the prerequisites for preliminary injunctive

relief have been established in this case, the judgment should be

affirmed.

Respectfully submitted,

DAVID T. GOLDBERG JUDITH K. APPEL

Counsel of Record DANIEL N. ABRAHAMSON

99 Hudson Street, 8" Floor The Lindesmith Center

New York, NY 10013 717 Washington Street

(212) 334-8813 Oakland, CA 94607

(510) 208-7711

Attomeys For Amici Curiae