Reply Brief — Oakland Housing Authority v. Rucker

i Supreme Court, U.S.

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No. 00-1781 : AUG 1 200!

In The CLERK

Supreme Court of the United States

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OAKLAND HOUSING AUTHORITY, HAROLD DAVIS,

Petitioners,

PEARLIE RUCKER, HERMAN WALKER,

WILLE LEE, BARBARA HILL,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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PETITIONERS’ REPLY TO RESPONDENTS’

BRIEF IN OPPOSITION

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Gary T. LAFAYETTE

Counsel of Record

SusAN T. KUMAGAI

LAFAYETTE & Kumacai LLP

100 Spear Street, Suite 400

San Francisco, CA 94105

(415) 357-4600

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TABLE OF CONTENTS

Page

A BASIS FOR CERTIORARI IS ESTABLISHED. ...

A. Review Is Because A Conflict Exists

Between Rucker and State Courts Con-

cerning the Meaning of 42 U.S.C.

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B. The Question Presented Is Appropriate for

C. Rucker Has Immediate Consequences On

~ Local PHAs and Other Tenants ............

THE COURT SHOULD NOT, AND IS NOT

REQUIRED TO, WAIT AND SEE HOW OTHER

FEDERAL COURTS WILL HANDLE THE ISSUE

BEFORE ACCEPTING REVIEW ................

ii

TABLE OF AUTHORITIES

Page

CASES

Braxton v. United States, 500 U.S. 344, 111 S.Ct.

1854, 114 L.Ed.2d 385 (1991)..........cceeee eens 1,7

Brotherhood of Locomotive Firemen and Enginemen v.

Bangor & Aroostook Railroad Co., 389 U.S. 327, 88

S.Ct. 457, 19 L.G.26 FED (1GG7). .. os cccccccessccess 5

Julian v. Central Trust Co., 193 U.S. 93, 24 S.Ct. 399,

ee eS 7 Pee

Kokkonen v. Guardian Life Insurance Company of

America, 511 U.S. 375, 114 S.Ct. 1673, 128

L.G.28 SPE (RODE. . ccccvccccdcccccdeuccunssnuenaen 2

Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865,

838 L.BGBR WOE TROUT) oc ccccccesavcesssunneunanl 4,7

Memphis Housing Authority v. Thompson, 38 S.W. 3d

fF Peet: 1, 2, 3, 4

Minneapolis Public Housing Authority v. Lor, 591

WE.WERS FED (RIDE). ccccvccccssccvccnuseusnscounens 4

Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 416 :

LOBE TEE GIT e ccc ccccccccccncctesssucntacene 5, 6

Walters v. National Association of Radiation Sur-

vivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d

Fe = MITT CITT TTT

Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 68

L.E98 GD CAGED... o<cccccusseccdabceaneeeane 5, 6

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TABLE OF AUTHORITIES - Continued

Page

STATUTES AND REGULATIONS

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Supreme Court Rule, 10.1.............6.:cee cece eeees 1

PETITIONERS OAKLAND HOUSING

AUTHORITY AND HAROLD DAVIS’ REPLY TO

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITIONS FOR WRIT OF CERTIORARI

Petitioners Oakland Housing Authority (“OHA”) and

Harold Davis (collectively “petitioners”) respectfully

reply to Respondents’ Pearlie Rucker, Herman Walker,

Willie Lee and Barbara Hill’s (collectively “respondents”)

opposition to Petitions for Writ of Certiorari filed by

petitioners and the United States Department of Housing

and Urban Development (“HUD”).

I. A BASIS FOR CERTIORARI IS ESTABLISHED

A. Review Is Proper Because A Conflict Exists

Between Rucker and State Courts Concerning

the Meaning of 42 U.S.C. § 1437d(1)(6).

A principal purpose for which the Supreme Court

uses its certiorari jurisdiction is to resolve conflicts

among the United States courts of appeals and the state

courts concerning the meaning of provisions of federal

law. Braxton v. United States, 500 U.S. 344, 347, 111 S.Ct.

1854, 1857, 114 L.Ed.2d 385 (1991), citing Supreme Court

Rule 10.1.

The Rucker court and the Supreme Court of Tennes-

see in Memphis Housing Authority v. Thompson, 38 S.W. 3d

504 (2000), interpreted 42 U.S.C. § 1437d(1)(6) to deter-

mine whether local public housing authorities (“PHA”)

had authority to evict for drug-related criminal activity

by tenants, household members, guests and/or other per-

sons. The two courts arrived at conflicting interpretations

of subsection (6).

The Thompson court expressly held:

After due consideration, we hold that the lease

agreement imposes strict liability for drug-

related criminal activity engaged in by the ten-

ant or any household member but permits evic-

tion for the drug-related criminal activity of

“guests and other persons under [the tenant's]

control” only if the tenant knew or should have

known of the drug-related criminal activity and

failed to take reasonable steps to halt or prevent

the illegal activity.

Thompson, 38 S.W. 3d at 505.

The Rucker court held that knowledge of the drug-

related criminal activity by the tenant was required to

evict for conduct by household members outside the ten-

ant’s unit. OHA App. at 28. The Rucker holding is in

direct conflict with the holding in Thompson to the extent

they relate to household members.

Kokkonen v. Guardian Life Insurance Company of Amer-

ica, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994),

cited by respondents, is inapplicable. In Kokkonen, the

issue was whether the district court had jurisdiction to

enforce a settlement agreement wherein the underlying

case was dismissed by stipulation without reference to

continued jurisdiction over the matter. Id. at 511 U.S.

376-377, 114 S.Ct. 1674-1675. No case law existed to sup-

port the district court’s jurisdiction, other than through

an impermissibly expansive reading of the holding in

Julian v. Central Trust Co., 193 U.S. 93, 24 S.Ct. 399, 48

L.Ed. 629 (1904). Kokkonen, supra, 511 U.S. at 381-382, 114

S.Ct. at 1677. That is not the case here.

—S— _

Respondents quibble that Thompson did not issue a

“holding” regarding household members. However, the

language in Thompson speaks for itself and “[t]his Court's

appellate jurisdiction does not turn on such semantic

niceties.” Walters v. National Association of Radiation Sur-

vivors, 473 U.S. 305, 317, 105 S.Ct. 3180, 3187, 87 L.Ed.2d

220 (1985).

In addition, Rucker affirmed the district court’s grant

of preliminary injunction and directives related thereto,

including permission to pursue evictions when drug-

related activity occurs within a tenant’s apartment, creat-

ing a rebuttable presumption that a tenant controls what

occurs in his or her unit. OHA App. at 29a-30a. The

Rucker court explained “these directives are perfectly con-

sistent with our interpretation of control in § 1437d(1)(6).”

OHA App. at 30a.

Thompson reflects no such rebuttable presumption and,

indeed, held otherwise. The Thompson court explained:

The phrase “under the resident’s control” per-

mits eviction only if MHA establishes that

Thomas knew or should have known of the

drug-related criminal activity “of a guest or

other person” and failed to take reasonable

steps to prevent or halt it.

Thompson at 512-513.}

1 After Thompson was decided, HUD issued revised

regulations which, among other things, clarified the meaning of

“under the tenant's control.” In that regard, the phrase relates to

“other persons,” and not “guests.” See 24 C.F.R. § 966.4(f)(12)(i),

(ii). Based on the Thompson court's reliance on HUD regulations,

presumably the court would have decided differently if faced

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Hence, contrary to respondents’ position, the holding

in Thompson is not “in fact entirely consistent with

Rucker,” even with regard to drug-related conduct by

guests within a tenant’s unit.

Further, respondents’ interpretation of Minneapolis

Public Housing Authority 0. Lor, 591 N.W.2d 700 (1999), is

incomplete. One of the primary issues before the Lor

court was to “determine PHA eviction powers.” Id. at

702. The Lor court decided the matter by interpreting the

United States Housing Act and related HUD regulations,

as did the courts in Rucker and Thompson. Id. at 702-703.

The Lor court held the local housing authority was

allowed to evict a tenant due to her son’s criminal activ-

ities at a neighboring residence, even though the tenant

did not have any knowledge of her son’s criminal activ-

ities or reason to anticipate her son’s acts. Id.

A clear conflict exists between Lor and Thompson, on

the one hand, and Rucker, on the other hand. Only this

Court can resolve the conflict that now exists.

B. The Question Presented Is Appropriate for

Review.

There is no bar to the Court’s review of nonfinal

judgments of the lower federal courts and, if necessary,

reversing a court of appeal’s judgment in summary dis-

position fashion. Mazurek v. Armstrong, 520 U.S. 968, 975,

with the same issue today and held that tenants are strictly

liable, not only for drug-related criminal activities by the

tenants and household members, but drug related criminal

activities of guests. See Thompson, supra, 38 S.W. 3d at 512-513.

117 S.Ct. 1865, 1868, 138 L.Ed.2d 162 (1997); Walters v.

National Association of Radiation Survivors, 473 U.S. 305,

317, 105 S.Ct. 3180, 3187, 87 L.Ed.2d 220 (1985).

By its interpretation of subsection (6), the Rucker

court set the standard to be used in this case and every

case to follow in the circuit for tenant evictions for crimi-

nal activity. In affirming the grant of preliminary injunc-

tion, the court of appeals set the legal standard, and

“[a)dditional findings on the merits” will have no impact

on the court's interpretation of the law. Any factual find-

ings and/or burdens of proof that may be set forth by the

district court will not change the standard.

Brotherhood of Locomotive Firemen and Enginemen v.

Bangor & Aroostook Railroad Co., 389 U.S. 327, 88 S.Ct. 437,

19 L.Ed.2d 560 (1967), is inapplicable. The Bangor case

involved the scope of an arbitration award issued in a

union dispute. This Court denied certiorari in Bangor

because the court of appeals remanded for further find-

ings prior rendering a decision regarding the issue before

it relating to violations of a temporary restraining order.

Id. 389 U.S. at 327-328, 88 S.Ct. at 438. Contrary to Bangor,

the Rucker court rendered its ruling on the issue before

affirming the grant of preliminary injunction and the

meaning of federal law.

Further, respondents’ argument that an erroneous

interpretation of the law is not a basis for review in this

case lacks merit. In the two cases cited by respondents in

support of their position, this Court granted certiorari.

See Ross v. Moffitt, 417 U.S. 600, 604, 94 S.Ct. 2437, 2441,

41 L.Ed.2d 341 (1974) and Watt v. Alaska, 451 U.S. 259,

264, 101 S.Ct. 1673, 1677, 68 L.Ed.2d 80 (1981).

In the concurring opinion cited by respondents in

Watt, supra, Justice Stevens joined in the majority opinion

on the merits. Watt at 451 U.S. at 276, 101 S.Ct. 1683.

However, he wrote a concurring opinion to voice his

disagreement to the extent certiorari was granted to

review the court of appeals’ interpretation of the federal

Wildlife Refuge Revenue Sharing Act of 1935, which

interpretation “did not conflict with any other judicial

decision and there is no reason to anticipate that a com-

parable issue will arise in another Circuit in the foresee-

able future.” Id., 451 U.S. at 274, 101 S.Ct. at 1682. As in

Watt, petitioners here ask for review of the court of

appeals’ interpretation of federal law. However, in addi-

tion, petitioners submit the interpretation rendered by

the court of appeals conflicts with interpretations of the

same law by state courts and, it is undisputed, that the

issue will arise in the near future in federal and state

courts. Hence, Watt supports certiorari in this case.

The issue in Ross, a criminal case, was whether an

indigent defendant was entitled to appointment of coun-

sel on his petitions for review by the State Supreme Court

and the U.S. Supreme Court. Ross at 417 U.S. 602-603, 94

S.Ct. at 2440. The Court held he was not, but explained he

also was not denied fair access to either court in light of

the record below and the courts’ discretionary review. Id.

at 417 U.S. at 615-617, 94 S.Ct. at 2446-2447.

The law as interpreted by the court of appeals is set

by Rucker and it conflicts with other courts. Contrary to

respondents’ position, the Court has discretion to grant

review here. P

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C. Rucker Has Immediate Consequences On Local

PHAs and Other Tenants.

The immediate consequences of Rucker on local PHAs

is the inability to provide safe, decent and affordable

housing to other tenants to which they are entitled.

Instead, these tenants live in danger and in fear of vio-

lence every day that local PHAs are unable to rid violence

related to drug-related crime as intended by Congress.

The obstacles local PHAs must overcome under Rucker to

evict for drug-related criminal activity are not required

under federal law. This reason supports certiorari. See

Mazurek, supra, at 975, 1868.

Il. THE COURT SHOULD NOT, AND IS NOT

REQUIRED TO, WAIT AND SEE HOW OTHER

FEDERAL COURTS WILL HANDLE THE ISSUE

BEFORE ACCEPTING REVIEW.

The Supreme Court Rules provide for review under

circumstances other than conflicts within the federal

courts as suggested by respondents, including conflicts

among the United States courts of appeals and the state

courts concerning the meaning of provisions of federal

law. Braxton v. United States, 500 U.S. 344, 347, 111 S.Ct.

1854, 1857 (1991); Supreme Court Rules 10(a) and (c).

Respondents suggest this Court sit and wait while

the “government's practices ... be allowed to percolate

below to determine whether federal courts reach unifor-

mity or conflict in interpreting section 1437d(1)(6).” The

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CONCLUSION

The petition for a writ of certiorari should be

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Gary T. LAFAYETTE

Counsel of Record

SusAN T. KuMaGal

LaFayette & Kumacar LLP

100 Spear Street, Suite 400

San Francisco, California 94105

hone: (415) 357-4600

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