# Petition for Writ of Certiorari — New York City Housing Authority v. Escalera > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0174%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 853 ## Text IN THE Supreme Court nf the’ WUnith¥ ! =~ ~ OCTOBER TERM 79°70 o43 $ . } - € a New York Crry Housing Avutuority, Ira.S. Ronis. Simeon Gonar, and Arawis Gow Ez", | 34 Petitioners, against Prpro Escanera ant Ros: MsCALERA, Respondents. (Continued on back) a PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT . . . . e Harry Livy ‘Attorney for Petitioners a 200 Broadway gis New York, N. ¥. 10007 3 Tel: (212) 433-5010, + CS ete 249 Press of Fremont Payne, kne., 417 Canal’St., N. ¥.—966—6570 \ 4 Nenu: . Ss vr ’ . New York Crry Housing Aurnorrry, Ina 8. Reps, Simeon Gonvr and Anais Gomez", * a * Petitioners, : against Rosk Lee Rouur. ; , sl Sa Respondent, + New Yorn’ Crrys Housing Avriorrry, Ira S. Robbins, Simeon Gouvar and Anawis Gomez*, Petitioners, "4 . agaist « Waren LoekmM ax and Viena Loox aay, Respondents, —_— oe —$ New York Crry Housing Auruorrey. [ra S. Robins, Simbos Gousn and Auamis Gomez", . Petitioners, against CLarexce WeMenrey, Puyiuits Weurnercy. and 7 | Faxxie. TAywoop, ee aie one pe Respondents. - « . : -. i Saas? oe ; * The above-nanied officials now hold the positions as the mem- bers of the New York City [Housing Atthority, and supersesle the otticials originally named as defendants in’ the proceedings below, 1.¢., of the Supreme Court. Francis V. Madigan-and Albert. A. Walsh. Rule 48(3), Rules Brockway \ “ 1970). c/ . 4 ‘FABLE OF CONTENTS: + PAGE - Opinions Below ............ eee ore holes uve pa Jurisdiction ....... AULT ENE Ee ePIC Questions Presented ......... eee re ee | Constitutional Provi isions and Statutes Involved ....: Statement of the Case .,......; eye ras eat ae Reasons for Granting the Writ ............ od patton i Sa ere i rer ne pe EPR SD Oe Argument ........ SEED iat Pea uAL Oe bie Conclusion ..... ote re PERE CS OE ECON ETRE CEES é& od 6 : TABLE: OF CASES . > Jouryois, Inc. v. Chapman, 301 U.S. 183 (1937) ..... v. Tofany, 310 F. Supp. 296, (S.D.N-Y. at 2 6 ee 2 oe ee Se SE Oe OS eR Ow Se SS 6. Ge Sa OS® ‘Cafe ‘teria Workers v. Mek ‘roy, 367 U. S. S86 (1961) Chicago. Housing Authority v. dicwark. 43 It. 2d 6, 951 N. 1. 2.185 (1969), cert. denied, 397 U.S DE Eee Va tlre scene Les hweua ennui es Cohens v. Virginia, 6 Wheat. 264 (4821)... ners" Colton v. Berman, 91 N\. Y. 2d 322 (1967 eer or ree Conway v. ( ‘alifornis a Adult Author ity, 396 TU. 3 . 107 ROLL) RE aa ae TABLE OF CONTENTS PAG “Eisen vy. Kastman, 421 F.2d 560 (2 Cir. 1969) 2.0.0. 24 Farina v. State Liquor Authority, 20°N. ¥.. 2d 484 fe <8 ABRs ep te Ae ty Pere Ce rors ebay ae feet 22 Gold vy. Lomenzo, 304 F. Supp. 3 (S.D.NLY, 1969) 2 28 Goldberg v. Kelly, 397 UL. . 204 ie as . . 1b, 17, 18, 19, = 7 21, 24 Golden %. Zwickler, BOE, Ss. 103 ( 10) PTT RT ey | Hannah v. Larche, 563 U.S..420 (1960) titel Se Rah be 4s dh ot . Harrison ve NAACP, 360 U.S. 167 (1959) a ey A te of Ihecht.v. Monaghan, 307 'N. Y. 461 ti Re ed emesy oe | Holmes v. New York City Housing Authority, 398 Fr’. od 263 (2 Cig, 1068) oc Perret! Free: reecn | i “In re Grobang 3a U. SS. .0030) (1957) bss & sek ee e eT as 18, 24 In re Williams (White Plains Honsitiy Authority), 62 Mise, 2d 613, 309 N, Y. S. 2d 454 (Sup. C't. West. Cty. 1970) cao... Re eer ee eee ee of Joint Anti-Fascist, Refugee, Comm. ve McGrath, 241 ; Di OE PEGE ae Sena ree ree ee ee Kelly ve Wyman, 294 I. Supp. 893 (S.D.NUY.. 1969), aff'd sub nom. *Goldbere ve Kelly. 397 U.S. 254. ASN eee ee epee. eee vale eee 18, 21 Lichter.v. United States, 334 U.S. 742 (1948) 0.00... Ot Manigo v. New York City Housing Nuthority, 5] Mise. 2d S29, ald 2 ALD. 2d 805, Ive app. den. 19 N. ¥. Pd OSS, cert. denied, 389 U, STO isa MeKartv. United States, 395 ULS. 185 (1969) eee a 4 | Muhammed Ali vy. Division of State Athletic (‘onmun. of New York, 308 Ff. Supp. IE (S.D.N.Y. 1969) 22.0 23 Murray: v. Murphy, 24 N. Y. 2d 150 (1969) Re et, aries Oe 4 + ‘ ‘: - TABLE OF CONTENTS | iii PAGE 125 Bar Corp. v. State L, iquor Authority, 24 N.Y. 24 174 (1969) ES ar oar a Ae ere Deere te, waren og 56 Peters’v. New York City Housing Authords, 1 A.D, 2d 694 (2 “a oa 195: v) SP Pere Ry IR a oe 29 Phillips v. Comin, 283 U.S. 589 (L931) oe... ea Sear Priehe & Sons v. United States, 332 U.S. 407 (1947); 24 Randell v. Newark Housing Authority, 384 F.2d 151 (1967), cert. denied sub nom.: Avent v. Newark 7 Housing Authority, 393 UL So STO ( 1968) . a, 14, 18, 2h. Reetz v . Bozanich, 397. S. 82 (1970) een tenth va 2 ae SEC y. Chenery Corp., 332 . 194 94m RR 20 SEC vy. R.A, Holman & Co., 323 F. 2d 284 (D.C. Cin Re as coe es ee ee ee ee ween 2) Sled Hill Cafe v. Hostetter, 22 N, Y. 2d 607 (1968) ... 0-22 Stuart v. Palmer, 74 N. Y. 183 ro Naa aA crptn vere ce | Thorpe Vv. Housing Authority of the City of Durham, —“B03 U.S. 268 (1969) 2. cece ee ceee nents 7. 14, 19, 20, 22 Toomer v. Witsell, Sai 0: 8. Soe CBEST a es es 2), 24 * United States v. Pierce Auto Freight Lines, 327°U. 5. D15 (1946) 2... SE CAKAS Ree Cen pret ae eaiees 20. ‘Vinson v. Greenburgh Hlousing Authority, 29 A. 1D. 2d jo8 (2d Dept. “1968). appeal argued May 28, 1970, N. Y. Court of Appeals ........ Waacne HEME es 22,26 W heeler v. Montgomery, 397 U.S. 80. (1970) | per erT 18, 19° W ignall v. Fletcher, 303 N.Y. 459 (1952 Perret re Pac: Willcox v. Stern, 1S N. Y¥:72d 195 (1966) -..... ere 20 Zemel v. Rusk, 381 U. Seb (1965) «2... Ba nthe. .. 9 iv. . . TABLE. OF CONTENTS aa. Statutes aNp Ruves Crrep , PAGE bs . . ; , . er SE ues eas bade cu oud Mieco ce MOEA SOMO Si os cn eos oc oe occn. Noteig faacep ae ; 2?0] Ae PEER, Sate Rietiats ines: Cea. Se ae we ee Sa a 4 er Sark Nie ee rey pee Shae ee oo UR. $00 sooo. cee Be SOA ect a ook Die We eo oe ook ee a Oe be 3, 4, 24 N.Y. Civil Practice Law and Rules § 7808 ........-. 3, 22 N.Y. Civil Practice Law and Rules § 7804(d) 2.00... hy 22 par : : N.Y. Reat Property Actions and Proéeedings Lai SO ies blue ee, CVE Cea e ee eS dy 2d vt ‘ . : N.Y. Public Housing Law, See. 37(1)(w) 2.0... van ee Rule 12() Federal Rules of Civil Procedure ....... 5 Rule 41(b) Federal Rules of Appellate Procedure... . av. : MisceLLANEOUS Report of the House Committee on Banking and Cur- reney on the flousing. and: Urban Development. rf 8 Sa TAN k ees ease here re 6 HUD Cireular of February 7, 1967 2.0.2... CRC meg: © Davis, Discretionary Justice, 1969, aw . eee ee PETITION ° FOR A -WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR © THE SECOND CIRCUIT . Petitioners, low York City Housing Author ity ‘nd the individual] members thereof, respectfully. pray that a writ of certiorari issue to Feview the judgments of the United States Court of Appeals for the Second Circuit entered in the cases therein on April 29, 1970, which reversed judg- ments entered in the District Court i in favor of petitioners, Opinions Below The opiaion of the Court of -Appeals, as yet unreported,. appears in Appendix A,‘ pp. la-25a. The opinion of -the District Court is unreported and a in Appe ndix By Pp. “0a-37a. | a urisdiction The judginents of the Court of Appeals were entered on April 29, 1970 and appear in Appendix D, p. 41a. Phe jurisdiction of this Court is invoked. under 28'U.S.C, $1254 eo ee Questions Presented ‘1. Whether the administrative progedures, followed by the Authority for termination of. public housing tenancies, satisfy the requirements of due process under the Four- teenth aes a 2. Whether the availability to the tenant, of an Article | 78 ‘proceeding im the New York courts to ‘review the Au-- thority’s action and determine whether it is illegal, arbi- trary or unreasonable, satisfies any residual: requirements of constitutional due process with respect to the Au- thority ’s. on a ene 3. Whether the ourt of Appei als should properly have: . reached or passed upon the constitutional issues raised in these cases when there was ny dispute as to the material facts * upon” which the ateumstrative proceedings wee predicated, , eo " - | 4. W hethed additional rent eee provided for in the Authority’s lease with its tenants, whie hy heeome legally enforcible by the Nuthority only atte ‘ra full seale de novo trial in the Civil Court where every defense is available to’ the tenant, requires a prior administrative adversary hear- Inge before the Authority may assert’ its ‘claim. and bring suit, “ : . Ce 5. Whether under the complex proce edures established by - petitioner for termination of tenancies, the issues raised by ° respondents should first be adjudicated by the courts of New York under the principle of abstention. ; 7 a | | NG W hether the eo of “Appeals was correct in ruling that.a proper cause of action, vesting jurisdiction in the federal District Court pursuant to the,Civil Rights Act, 42 U.S.C. § 1983, had been established by the: complaints when, at ‘best, ‘only property rights are involted. 7. .Whe thor the ee of Appeals, was correct in re- versing the judgment, in- ¢ summary judgment, granted by’ the District Court in favyr of the Authority. - 8. Whether the Court of Appeals/was correct in hokding that a. prima facie basis fora classaction had been estab- lishred., U Constitutional Provisions and Statutes Involved | The constitutional provision invalved is the Fourteenth Ame ndment to the United States C onstitution. The federal. statutes involved are 42-U, S.C. mig Js » US.C. S§ 1545(3), 2201 and 2202, Appendix M, pp. 125a-. 127a. The New York’ State. statutes involved are N. Y. Civil Practice Lawsand Rules, §{ 7803 and TS04(d), Ap- pendix M, pp. 126a-127a; Real Prope ty Actions and, Pro-. ceedings Law, § : (48, ‘earns M, p. 127a. “ Statement of the Cate ¢ ; ‘~ es A. *-« ‘ The respondents in these four actions, consolidated. below for the purpose of -the appeals, are tenants in occu- paney at various low-rent housing projects (hereinafter Tenant or T enants) owned and operated by the petitioner. New York City Housing Authority (Authority), Im the: several ‘purported class actions brought by the Tenants ia the District Court for the Southern District of New York, pursuant to the Civil Rights Act, 42 U.S.C, § 1983, they velaim violation of their rights under -thie Fourteenth Amendment and they seek money damages, »injunctions, and declaratory judgements against the Authority. ,Juris- diction is invoked under 28 ULS.C. Ss 1543(5), 2201 and 2262. It is claimed that these alleged violations occurred in connection with the termination of their tenancies in the Authority’s public housing progects and by the as- seFtion of-additional rent charges by the Authority. Respondents’ have alleged, inber alia, that the written notices of the reasens for termination of tenanct were’ constitutionally insufficient, that “Authority” procedures failed to afford these Tenants an opportunity to confront: and cross-examine witnesses on whom the Authority relied in terminating their tenancy, that there was an improper use.ci items in the respective tenant folders reputedly un- known to the respondents and on which tlie Authority had relied in térininating tenancies, and that they were denic 77 access toa Tenant Review B ard Handbook. which deals with Authority B sox rirgentin for terminating tenancies on the ground of Non:Desirability. It was also Alleged that the Authority’ - failure to follow adversary procedures in : regard iy eg assertion of aulditional rent charges was a, violation fof Lue process, vane ce r 5 : The’ 2 uthOvity brought on motiens pursuant to Rule 12(b) of\the-Federal Rules of Civil Precedure to dismiss _ the actions for, inter-alia, failure to state’a claim upon ‘which relief could be granted, lack of jurisdiction, lack of a substantial federal question, failure to exhaust ad- ministrative remedies,.and upon the: ground that the fed- eral courts should abstain from considering these actions. ‘the first instance, of ‘the questions raised herein. ~* ‘Affidavits and documentary evidence-were submitted by the respective parties, and on October 31, 1968,. District Judge Sylvester J. Ryan ‘rendered an opinion which ‘ granted the Authority’s motions and disinissed the actions on the merits. The respondents took an appe: 1 to the Cut of Appeals, Second Circuit, which ‘rendered an opinion’ and. entered judgmentson_ April 29,1970 which reversed the judgments _ of the District. Court and remanded the actions. to the- District Court: ‘for consideration of respondents’ motions for preliminary relief and for trial on the merits. By order Jnadé on June 4, 1970, the Court of Appeals, Second. Cireuit, stayed the issuance of the mandate pursuant to Rule 41(b) of the Federal Rutes of Appellate Procedure, meee, See” ; ay Ss Publie’ housing authorities Pan a ‘difficult problem in- coping with families: whose conduct is undesirable, objee- tionable, or inv iolation of. reasonable regulations grove ring operation ‘of ‘public housing projects. This problem is. accentuated by the large concentration of children and elderly persons in public housing projeets. The develop- ment of a suitable living environment conducive to sound. family and community life would be endangered, if not * defeated, unless appropriate measures are taken against the undesirable conduct of proble m-tenants (see affidavit ya . Y ‘“ > ~ - pending a determination, by’ New York State courtsjn— t * ; 6 | : , ’ Tra S. Robbins, reer ik. p. 117a). Congress is oui aware of this serious problem, and its concern is reflected in the reporteof the House Committee on Bank ing and’Curreney on the Housing and Urban Development Act of 1969 (see Appendix L, p. 123a):. Practices and procedures of the Authority with respect to tenant occ tpaney and ernination of tenaney have been’ “de veloped over the more than three dec: ides that its publie housing “program has heen. in effect. Apartments are leased for a term ‘of one month. Each lease . is auto-. Anatically renewed > far ‘additional terms of one month, unless either party terminates the tenancy by one.month’s “notice in writing. Continued occupancy depends upon. complanée with Authority. regulations. Tenants are en- titled: to reasonable safeguards against arbitrary action by. the Authority in terminating their tenancies, and tlie Authority -has therefore developed detailed procedures: - over the past thirty vears that aresintended to. give fair Aree, inl adequate conside ‘ration. to the Pe ‘hts of tenants. : Copies of these procedures were submitted to-the Dis- - trict Court if support of the Authority’s motions to, dis- _ hiss the complaints, and Appear at ee ” and F, pp. 45a-59a, or Rerldinetins Of Humphrey was t@rminated on the ground Fi ~ Non- Desirability, The proceedings against Rolle, also ee reed with’ Non- Desirability, were. suspended. The tenaney of BE scalera was te rminated for Breach of Rules and Regulations. The co-plaintiff: in the BE soul Me action; Gallagher, died. during the pendeneyof the appeal. Lock- man, Haywood, Humphrey and Escalera elaim that the Authority violated their constitutional riehts under the’ Mourteotth Ame ‘ndment in respect to the imposition of additional rent charges, ; ; rae png « With’ respect to termination of donancy for Non-* -Desirability, thé “Authority showed hy affidavit of the: ae | Vice-Chairman of the Authority, Lra.S. Robbins, and by printed procedures submitted with its affidavits in sup- port of its motions to dismiss, that.a detailed procedure - existed which the Court.ef ‘Appeals found ‘admittedly satisfy the requirements of the Departine nt of Housing and Urban Development circular of Febr uary 7, 1967, con- sidered hy the Supreme Court in Thorpe.y. Housing Aw thority of the City of Durham, 393 U. S. 268 (1969). (Appendix A, p. 12a). -Such procedures require the: manager of the housing project to write to the tenant, and request him to, aitend an interview in every instance where an incident occurs which may become ‘the basis for termination of tenancy. At the interview the manager is required to state the rea-* sons for the interview, explore them with the tenant inso-. far as theysmay possibly lead to termination of tenancy, secure the tenant’s explanations, and. caution the ‘tenant to correct the matter(s) complained of. After the inter- view the manager may recommend .termination of the ten- ancy if he finds the incident, er accumulation of incidents, of sufficient gravity under the Authority’s established standards: governing desirability of tenants. (Soe Ap- — ptndix G, pp. G4a-68a.) ‘In the event that the manager recommends termination of the tenaney, he so informs the tenant at\another interview, and the tenant-is invited to submit. any data or documentary evidence which he con- siders appropriate for, his defense, The manager there- upon is required to submit to the Authority’s Tenant Re- view Board (hereinafter TRB) the tenant folder together . with his summary report and recoipendation for the ter-’ mination of the tenaney, and the mY nN answer ‘thereto and documents submitted by him, if any. . The report of the manager is concerned solely with the incidents and the matters which had occurred in. the past, ‘ 5 S and regarding which. the manager had either conducted an interview with ‘the tenant’ or requested an interview ap- pointment which the tenant failed to neep. (See “TRB Handbook, p. 23, Appendix G, p. Sa). , The manager's report and reasearndntion together With the tenant’s answer are forwarded to TRB at the cen- tral office of the Authority. There they are considered by a body of officials consisting of the Chairman, who is one of the three metibers constituting the Authority, a rep- resentative of the Legal Department, a representative of the Management Department, the Administrator: of the: Board, a representative of the Commtmnity Affairs Divi- sion, a representative of the C ommiunity amd Social Sery- ices Department and two housing project managers. After reviewing the record TRB may reject the man- ager’s recommendation, may require further investigation, may order the case held in status quo, oy may direct a social evaluation report to be made. When TRB -is of the view that consideration of termination of tenaney is appropriate the tenant is so notified, and informed that “hheginay request a hearing before the TRB. Lf he responds allirmatively he receives a letter which specifies a date for the hearing, sets forth the standards established by the -Aiithority for determining Non- Desirability (Appendix Gi. op. Wa), and outlines the general nature of the non- desirable action. or conduct * involved,“ As above -set forth, this had previously been discussed at. the project between the manager and the tenant-and had been sum- tarized by an entry in the tenant folder. The tenant is further informed that he-may have the assistance of an attorney or other person at the hearing to be scheduled. ~The Authority’s proof in the Rolle ease (which is admitted ‘in the Rolle complaint) showed that the tenant was offered ‘iccess to the tenant folder upon request in order to again ae- quaint her and her counsel with the incidents and conduct y which were the subject matter for consideration by TRB. Adjourmnents are granted to tenants if they need more tine to prepare their cases after they have been advised of the matters presented to TRB. ' Under Authority procedures, the chairman of the TRB. has the power to issue subpoenas and swear witnesses in any case where’ thie cipcumstances dictate that such action be taken. At the, TRB. hearing the TRB aditinsatoator recites the incide nts or conduct:to be. conside red by the Board... The tenant and his counsel may submit sucli written doc unents and data as they wish, and may present any oral reply with respect to the matters under consideration. “They " may also present witnesses who may make oral statements. If the TRB determination is adve1 rse to the tenant, the action of the TRB is reviewed by the Chairman of the TRB, who is a, Member of the. Authority. If approved, the tenant and his counsel are so. informed and the project manager ds directed to serve a 30-day Notice to’ Vacate, pursuant to the monthly lease. This was the proceedure followed in respect to the Humphrey case. In the Rolle. case Mi Rolle and her counsel appeared at the TRB hearing and presented w list of demands] (which had already been spro- vided) in’ summary form) faucluding a request+for ad- Vance written notice of the charges). that a stcnographic transcript of the proceeding be kept, ‘that persons With actual knowledge of the charges be pregent for confronta- tionsor-cross-exanination and in addition, that an imipar- tial hearing examiner be used. When these demands were rejected, Mrs. Rolle and her counsel refused to vo forward with the hearing. The Authority having suspended further action pending the outcome of these. cases, no 'T R By deter- mination was made in the Rolle ase, With ‘respect to Escalera, the complaint admitted (Com- plaint, par: VI, Appendix N, p. 132a) that a dog had been harbored. over a period of years in violation of the An- é thority’s regulations. Under the Authority’s regulations such conduct constitutes’ a eround for termination of. ten- ne é Bs . + a eo ancy, de nominated as Bre ach of Rules and aban The manager of the project, being unable to persuade the tenant to remove the dog trom the premises, ‘and not re- ceiving. requested proof from Mr. Kscalera- that he had done so, recommended termination of the tenancy. In ae- cordance with procedure in such cases (See Acaucedin f po tte, the tenant answer, the fenant folder, together with the report, of the manager were forwarded, to a Reviewing, Official, who: is a high administrative official of the Authority. The Reviewing Official made a de termina- tion that Kscaléra was ineligible’ for continued occupancy and he authorized termination of the tenancy With respect to Lockman, the Authority’s ane for asserting additional rent was brought.into question on a_ constitutional basis. I/nmphrey, Hayw 00d and Escalera also complain of the additional rent charges. Lockman was charged as. additional rent $2 by reason of his son playing ball on Authority property: $5 for his son’s rid- ing a bicyele on’ Authority walks: and $2 fora ball-playing ineident, which was reduced to $1 alter reconsideration Was requested by the: Lockmans. These additional rent charges were pad. The Authority's basis for the addis tional rent charges is the lease agreement and the Tenant Rides and Regulations, each signed by the tenant, copies of which are annexed as Appendices Land J, pp. 100a-107a. (See par. 2x, Tenant Rules.and Regulations, Appendix J, sertion of such additional rent charges requires the proj- ect maneger to call the tenant in for: an interview to discuss the matters. A ‘copy of the procedure appears in Appendix -H,.pp.. 97a-99a.. If -the manager is. satisfied that a basis exists for the assertion of such a charge, the . tenant is informed that the amount claimed, which is. re- quired under the Tenant Rules and Regulations to he a reasonable, charges will be added to the rent obligation . payable the following month. If the tenant refuses to” “p. 106a). The Authority's: printed procedure for the as- . fs mel ae ; make such ‘payment, the Authority is required to institute legal action in the Civil Court of the City of New York in “order to recover it. Upon the trial of the action in the Civil Court the Authority must prove its claim de novo. The Humphreys were: charged ¢3 additional rent for a toilet stoppage and the co-plaintiff in the Humphrey ac. ' tion, Haywood, was charged $5 for the actions of “her brother in dirtying the project premises. The brother was not a tenant and did not live in the project. Subsequent. charges against this tenant and Esealera were withdrawn ‘at the intervention of counsel: Diy | x 12 Reasons for Granting the Writ’ Summary 1. The opinion of the Second Circuit lays down novel -and unprecedented guidelines to: be followed by pubhie housing authorities in administrative proceedings for the . termination of tenancies in public housing. . These® extend due’ process requirements far beyond those made by this - Court, by the Supreme Court of Illinois, and by. the Third Cireuit. They further conflict with decisions of the New York State Court of Appeals. 2. The Authority's termination of tenancy proceedings in Gach of the cases under which its procedures are chal- lenged were founded. upon established, undisputed facts, In Humphrey and Ralle there were criminal convietions; in - Escalera, a-dog had admittedly been ‘kept by the tenant for years in violation‘of Authority regulations. Under these cirtumstances the procedural due) prgcess requirements laid down by the Second Cireuit in respect to Notice, Cross- examination, and Findings were supererogatory, and -its holding was nothing more than an advisory opinion on abstract, hypothetical issues which’ this Court has con- sistenth ruled should not be adjudicated in a constitutional _— xt. » >. The s Second Cirenit ruling conflicts with prince iples of laws long established hy this Court, that the availability of judicial review bya state court of an administrative deter- mination: before it becomes legally effective, satisfies any residual due process requirements of: the Fourteenth Amendment. . © 4. The Second Coreuit holding that the additional -rent charges claimed by the Authority (which can be recovered only after a de novo trial in the Civil Court of the City of New York), requires an adversary-tvpe hearing at the_ad- ministrative level, is not mandated by due process, and is in conflict with established law enunciated by this Court. 13 ). The Second Circuit refused to apply the principle of abstention, to afford the New York State courts the op-_ portunity in the first instance to pass upon the issues raised -herein with respect to administrative procedures, in accordance with rulings, made by this Court, as recom<. mended by the Third Cireuit in Randell vy. New ark Hlousing Authority, infra, and thereafter applied by. the District ‘Court of New Jersey in that case. 6. The conclusions of law enunciated by the Court of - Appeals have established far-reaching principles which will extend: beyond the reach ‘of. the present litigation to the ‘more than ‘two thousand public housing. authorities throughout the country. A nuinber of cases involving these issues are now pending ‘in Federal and State courts. The ‘effect of the Court of Appeals decision is too montunental to he allowed to remain the law @f the case without af- fording the Authority a full opportunity to challenge its - soundness.’ hnportant questions of procedural due proc- OSS, eee for the first time by an appellate court with respect public” housing, require consideration. and daaaciren by this Court he ‘fore becoming established as the law of thé land: © The sweeping generalizations of the opinion, coupled with a remand for consideration of the issuance of a temporary injunction on a class action basis. may radically alter existing procedures of this Authority and housing authorities throughout the country before this Court will have an opportunity to. review the question.” Tf ‘certiorari is not granted administrative action in these areas of activity may be inhibited, if not paralyzed.» Under the constraints of the Second Gireuit opinion the District ‘Court will be readily persuaded that the law of the ease has - heen established, and that it only remains for the lower eourt to implement the principles stated in the opinion. The tenor of the opinion has placed extremely difficult. if not insurmountable, obstacles to the Authority’s defenses at the. trial. son Me o > : 7 ° . & ‘ ay 14 : ‘ ei - ARGUMENT ae il - The: proéedures’ established by: the Authority exceed the requirements laid down in the’ HUD circular of February 7. 1967, as deseribed in Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268 (1969). With respect to Humphrey and .Rolle, the procedures ‘afforded to then also exeéeded the—procedures followed in Randell y. Newark. Housing Authority; 384 F. 2d 151. (1967), cert, denied sub nom. Avent y. Newark Housing Authority, 393-U. S. 870. (1968). a Civil Rights Act suit brought by public housing tenants, and in Chicago Housing A uthority v. Stewart, 43° Tih 2d 96, 2ol N. EF. Iq ASD. (1969), eert. denied, 397 U.S. 1000, March 23, 1970. In regard to termination of a publie housing tenane¥ for undesirability, the Thifd Cireuit in Randell, ies vacated the stay and preliminary injunction theretofore granted in’ favor of the tenants, appeared to sustain procedurés followed by. the Newark Housing Authority. which afforded the complaining tenants there substantially Iess than what thix petitioner. provides for its tenants at a TRB hear- ing. Likewise, the procedures followed by. the Chicago Housing. Authority: in terminating the" Stewart tenancy allowed the; tenant considerably less iff the way of ad-. Versary-type procedures. than are afforded by this Au: thority. ~ | ones Consequently, there now exists a significant .; differ- ence and conflict in holdings made in the area of procedural due process involving the termination of public housing tenancies between the Second Circuit, the Third Cireuit and the [linois Supreme Court, and more particularly, with respect to the specific issues of procedural due process de- cided in these cases by the Second Circuit. - Moreover, in: - 15 ., both the Randell and Stewart. cases, despite the absence .* of findings, of formal notice, .of cross-examination ‘and confroatation which the Second. Circuit ruled was. manda- tory under the Fourteenth Amendment, this Ceurt denied review requested by the petitioning tenants. Issues of procedural «due process must le determined according to ‘The precise nattire of the interest that has been adversely affected, the manner in which this. was done, the reasons for doing it, the atailable alternatives tothe procedure.that was followed, the protection implicit . in the office of the functionary whose conduct is challenged: the balance of hurt complained ef and good accomplished / —these are some of the considerations that: rust enter ‘into judicial. judgment.” Joint Anti-Eascisi Refugee Comm. v. McGrath, 341 U. 8. 123, 163 (1951), rank-_- furter, J., concurring. **The very nature-of due. process _ negates any concept of inflexible procedtire universally appheable. to every imaginable stuation.”’ Cafeteria Workers +-Mcklroy, 367 U.S. 886 (1961). In Cafeteria Workers, sup¥a, this Court stated that the Fifth Amend- iment, and by inference, the Fourteenth Amendment **. 2. docs not require a trial-type hearing in every conceivable case of government impairnient of private. interest.’ Cafeteria Workers, 367 U.S. at 894. Seo also Haunah v. Larche, 363. U.S. 420, 442-443 (1960)." In. the present vases, in the absence of any naterial issue pertinent to thre grounds for termination of the respective tenanéies, there Was no constitutional basis for invoking the ftill panoply of a trial-type hearing in order to comply with procedural due. process. ; ae ee ey ae Countless adininistrative determinations are reached by informal administrative procedures... (Daris, Discretionary . Justice, 1969,. pp. 98. 118, 186). Reeent decisions ef the _Cdurt of Appeals of New York authorize and sanction the use of informal adiinistrative procedures Wherein hearsay eV idence may .be ree eived and considered. In 125 Bar Corp. State Liquor Authority, 24 NSY. 2d 174.179, 247 N. EL 2-157, 2990 N.LY.S. Dd 194 (1969), tlie New York court adjured New York administrative agencies to use ‘common sense and a fair approach in using sucheinaterials, With such use depending in eae hecase upon the edreun- stances and qualities af such materials. In, Colton Vv. Berman, 21 N. ¥. 2d 322, 329, 284 N.. Bed 679, 2ST_N.Y.S. 2d 647 (1967),-it was held that in matters pertaining to rent control and valuation of property made for the pur- pose, of establishing residential rents, a full evidentiary hearing is not required nor are findings necessary. The New York Court of Appeals has sanctioned informal ad- ministrative proceedings as valid to-support an adminis- trative determination, but it it has not hesitated to enforce other standards wher@it found that constifuional require- inénts of due process so‘dictated. Hecht-v. Monaghan, 307 = Bs 401, 400, 121 N. i. 2d 421 (1954) 5 Wignall ve Fletcher, » N.Y. 435, 440, 103 N. E: Yd F28 (1952): Stuart v.. Pate *, 74 N. \. 183, 190-191,.30 A. R. 289 (1878). The Seeond ‘Circuit prgdicated. its decisions in~ the: present cases upen the reasoning and conclusions of this Court in Goldberg yv. Kelly, 897 USS. 254 (1970). The Grold- berg ease and the present eases, however, are quite dis. | similar, and the reasoning by analogy of the Court of -Appeals in these cases was not warranted. (See Colens ¥, Virginia, 6 Wheat. 264, 399 (1821)). The ruling in Gold- berg v. Kelly, which deals with impecunious welfare re- cipients whose sole Sine of subsistence had been terminated by welfare authorities, was bréught into the present cases in its éntirety. without any attempt to dif- ferentiate or distinguish the circumstances; and-the nature of the governmental action, taken against ‘the: Tenants hereiry. Al ithough the Secord Ciréuit cited the established: principle that the nature of the gov ernmental function in- volved, and the species .of private interest which is affected by the governmental action, must be w eighed in each par-- ticular situation, - no effort to weigh or evaluate these” decisive factors was in fact made by that court. In Goldberg v. Kelty, the crucial factor which impe jled the majority of this’ Court to reach its due process con- clusions was the desperate, irremediable plight of a welfare , recipient whose financial means to live, and stirvive is sum- marily -withdrawn. This. vital, distinctive factor is en tirely lacking in the cases involving termination of tenancy, «rtainly with respect to the assertion of additional charges, The administrative procedures attat *ked here re only the inception of a long process which takes many months before removal of the tenants froin the premises is effected, during which judicial review is available. (See. .- affidavit of Tra S. Robbins, Appe ndix Ky pp. 113a-114a.) ‘The procedur 's eonsidered by this Court in Goldberg had been only recently adopted. The procedures now be- fore the Court have been in effect for many years and provide for.a review procedire, Which in ¢ases of Non- Desirability affords an additional opportunity fora per. sonal appearance with-counsel and to produce witnesses: _ Furthermore, needy eligible {persons and families have an absolute right under law to receive ‘public financial -as- sistance. On the other hand, not all cligible and’ needy applicants for public liousing in-New York City can be admitted to public housing projects due ‘to the lack of sufficient ‘public housing units. Admission depentsupon a-* schedule of priorities based .upon need. (See shires 8° Y. New York City Housing scasaoabens. 398 iB Id 2 62: 963 (2? Cir. 1968)). Questions . touching upon the serious impact of non- ‘desirable tenant: behavior upon other tenants and of conflict between. tenants by reason of mandated adversary, proceed-. —_ 7 a (Po. SP) ie eile aoe ° . At. 3 | “ - ings for termination ‘of tenanc ye awere: not considered by the SeGoad Cirenit. These considerations wire not present in the Goldberg case, whe ‘re the impact of deprivation of welfare hanefits was solely upon: the recipients involved, it has been stated ‘The Due Prods Clause ta not disregard vital differences.”? [n‘re Groban, 852 U.S. 330, . 337 (1957), F rankturter, J:, concurring. The Wecistiate dis- tinctions avere neither .examineg nor eonsidered by the second Circuit W hen it ruled that. the prince Iples set Torth in Goldberg v. Kelly were fully applicable to termination of publie housing tenancies and assertion gf additional rent charges. Be te OE | : The possible consider ition “a the foregoing factors by. the District Court on remand js precluded by the direction cot ‘the. Gourtéof Appeals whi¢h expficitly singled out ‘ex- peditiousness’? as the sole consideration to -he explored by the Distriet.Court (Apps: Ay pp. 18a.-25a). Compare Randell y. Newark, Housing Authority, 384 F.2d Tod, lod. (3 Cir, 1967); Nelly ve. Wayman, 294 F: ‘Supp. S93, 905 (SDL, N69), afd sub nom,, Goldberg vo Ke (ly, 3NT JS. 24 (1970), where consider ‘ations of confidenti: lity al informatién were not altogether re jected. , It is worthy. of mote that the majority opinion in pets berg v. Nelly reegenized. thats**in this developing field « “Taw any procedural requiremeats beyond those Lninnded hy rudimentary due process’? should not be imposed j ady: anee ol their NECESSITY, 307 UL S. at 267, In othe epm- panion éase, Wheeler y. Montgomery, ov7 -U. S. 280, 284 (1970), Chief Justice Burger in- dissent, stated that courts ‘should “wait (intil more ix Known about ‘the problems be- Fore fi ashioning solutions in the rigidity of a constitutional holdings”? The Second Sivcuit— failed to observe _ these admonitions in reaching its deci ixion in the present 1 Cases, In Thorpe, supra, this Court ruled that it whuld not make constitutiqnal decisions on matters which had not reached. the poitit where a conerete fact situation was presented for adjudication, The Court stated’ that. it does not- sit toc! ee sess aah abstract, hypothetical or’ . contingent queséions a . or to dteide any const itutional a) eae ta In advance of the nec oat Yor its decision: (393 USS. at 283-284). ES ae cue, ee Rolle neither: presented. i to ‘tual issues at’ the i RD hearing, In their ei Rights Act complaints, tior in-‘the Affidavits. the ‘vy submitted con the Authority’s iotion té dismiss in. the ieee Court. The cases are legion-avhich fold that constituNenal nad judi. -eution ean only be given meaning by¥ being dpplicd te eon. crete rep ‘in specie vines. See ci. A Milve Rush. gis) U. S. » 20 (1965); Wolheu< Lwickt t r. Bod Las. 103. 10 7 Fie, If constitutional ad judic ation va ends upon tacts. the facts’ he ‘fore the Second C ‘ireuit did not SUPPOrt a case for findine that there was a détial of procedural due proc. ess. The Court of Appeals Was therefore Gompelfed to posit premise x not relevant to the INsues (Ge. Hnpreper use of tenant folder, inadequate notice, absence of fihdapgs) to eagh. its conclusion that proge dural due’ process had been sre under’ the Nathority’ ~ procedures, Coiipare the remarks of My, Justice Brenian -in Galdberg y, Relly, supra, and ‘Chie! ghuistice Burger ‘in Wheeler vio Mout- gomery, supra, to the effect that const ititiong! heldines on questions of procedural due cprpcess should net he made in the absence: of Clear negéssify for a court riline. In:the present « cases, the mere avhilability of the ten- ant folder to the TRB whs cited to sit that due yirocess shad: been denied, but subst: antive facts derogating from’ the. Authority’ s basis for terinimation of tenancy were not adduced sat any stage of the proveedings taken below. Tlie factual basis for each fermin: ition action, ort the argument, Fo “an abstract, hypethetical dpinion since the undisputed, Tumphrey, Rollesand Exscalera, or” ne nn St aia set forth in the respective afiidavits of Ira S. Robbins, Vice-Chairman of the Authority foreach case. and not. contfoverted, in each -of the respective complaints by \i affidavit, presented a sufficient admihistrative basis under New York law for the ee of tenaney action taken by the Authority. Willcox vz Stern; USN. Y..2d 195, 208, 219°N.-1E. 2d 401, 273° NYS. 24 OS (1966). F ederal law on this spk t is not to the contrary, SEC vy. ai ‘nery Corp., 332.17 . 194, 207, (1947): United States v. Pierce Auto Freight 7e 397 U.S. 515; 535, 536 (1946). Accordingly the Court of “Ap: e ebls : Was not justified in dealing with the pur rorted ¢on-— . J stitutional questions, ‘ ei aae Second - Circuit, contrary to the holding in Thorpe, supra, and numerous other decisions of this Court; rendered facts. in each case of termina ted tenancy riitionally ssup- “por ted the Author ity’s determination. In this posture af the ~ case, the, Court of Appeals should. have eschewed a Civil ¢ : ’ Rights Act decision in the cases.’ Compare Comvay vv. this*Court stated that it would not render an “advisory opinion” on a purely artificial and hypothetical igste’?.. Accordingly, tigMconcriptein tid ciawk hy .the Second Ciremit for en oe for cross-examination and - findings, Jor availability of the tenant folder and the TRB Handbook, were cease to any constitutional issues ° ‘presented in these gases and such rulings should) there. fore be set. aside, : In mands iting th: ee tenants faci ine ternins atic in of tenane Vv he afforded eross-examination and confrontation, the So ond Cirenit ignored the rule of reason |: vid down by this - Court in Thorpe, supxa e393 U.S. at 283-284. In the pres- ent cases the ce ntral\ fact... Le, eriminal. convictions in Tumphrey and Rolle and the presence of a doe in Esealera, rationally and adequately support the Authority’s adiminis- - 3 4 ‘ ; Ne - . ¢ 3 He A é Califa, if iia Adult Authovitiye 396-4 S407-110 (1968 9), where woukt heattorded an fee to state why’ the to . s 7 ? . oF trative de termifation. . -Ther® is no material issue ‘of éredibitity or of fact in any of these. ‘ases, and op eta there i is no necd for cross-examination, (Conmipare the judg- ‘ment of the Distri¢t Court in Kelly ve Wyman, 294 €, ae SUS (1969), aff'd sub nom. Goldberg. v. Nelly, supra, Ap-° pendix C, Dp 39a. ps be Kass wk "Lhe opinion of the, Second Cireuit Inade no Concessign. to the -possible variations in’ the circumstances of par- ticular oe where’ complaints of non-desirable dg¢tivity® or conduct were involved. Questions Of eross-cxamination- should he reserved for the appropriate a situations. (See Authority Resolution, Appendix F, p. 58a, authoriz- ing the Chairman of TRE. to eee a swear wit- Nesses, ) As ; eee,” In addi ion, Mrs: Holle refused to participate unless the conditiong ae laid. down for conducting wht she con- siderei to be’a constitutionally valid adininistrativ pro- eecding by the TRB were met. > This ret ugal to partic: Pn ae ‘p paté in an “administrative ice webal aes where the” tenant ——__—— eibickiins of the Rolle-don should ngt be a basis for, ter mination of tenancy precluded ‘any favor: able hg ae in her case. (See — art v. United ete Sao: B18, 194-195 (1969): SEC vw R.A, Holman & Co. 323 8 asd; 287 (D. Cokie. (1mi8) ‘ | IH “In holding that’ he | avaachiliy. a julie ‘lal review in, the ° _New York State Supreme Court’in Article hs. proceedings ’ “hots not satisfy the due Process . require ments of the Four- teenth Amendment,.and that consequently. an mdversar type proceeding on ‘the administrative level istrequired it terminating public housing tenant: ies, the decision ilove departs from established law. “he “New York . Civil * Practice Law and Rules (CPL R) require that when a- “pros . s . . > i ceeding is-brought to Challenge an administrative deter- ination, the. ulministrative body or officer is required ta serve." a verified answer, which must stete pertinent and mates ial ttets show! ing the grounds of the respondent's” action complained of.’ N.Y. CPLR 7804 (d). See also hunson V, Greenburgh Housing Authority, 29 A. D. 2d 338, 339, 288° NYS. 2d 159 (2d Dept. 1968), appeal argued May 28, 1970, N. Y. Court of Appeals. Smee % New York case law requires that there be **factual sup- port” for an _administr ative determination to be Valtd. . /F arina v. State Liquor. Authority, 20 N. Y. 2d 484, 493, 23] “N: E. 20748, 285 N.Y.S. 2d 44 (1967); Sled Hill Cafe v. Hos tetter, 22 N.°Y..2d 607, 613, 241 N. B. 3d 714, 294 NLY. Sa! 24 497 (1968), Substantially similar provisions have deen ‘ in effect in New York for over a century and have afforded full and fair review for many thousands of litigants who have challenged the action of an administrative ‘body or _ Officer. N. J OP .R- (805 (5) affords judicial review -to deere ved. persons who claim ‘that ‘ta dete ‘rmination. was made in violation of lawful procedure, was affected by an, i" error ef law or Was arbitrary and capricious or an abuse lliscretion * * **t° ; ss \ Q- In VMarrayey. eat, 24 N. Y. 2d 150, 157, 247 és B..2d° 145, 299 NLY.S. 2d 175 (1969), the disinissal of : L police “Officer on erounds hot charged against him was held.to be in vidlation of due process. Under daw established by this .Court.the availability of such state judicial rey lew has been: deemed sufficient toameot thee ‘onstitulional requirements of nrocedural due process, irrespective of whether faulty pro- cedures were fallowed at the administrative’ ‘a vel. Thorpe \ “ay fousing A uth Orr | theC ity of Durham. 3! 393 US. PGS! 284 ( 1G) > Toomer ve Witsell, 3834 UL Sc: SD, 99 2 (1948): Bour- jots, Lye v. Chapman 2301 U.S.-183, IS9- 190-1937). How- ever ane Second Circuit in the cases. now before this Court fuled that claimed deficiencies in the Authority’s adminis- trative napa s could not bé cured by the availability af Judie ial review in Article TS proce ceedings in. the ‘New York .? ‘ 93 Me 2 be . Pe State Supre me Court. * Although seve eral distri let court de- cisions in the Second Circuit havé held that Article iS pro- ceedings | provide a satisfactory and sufficient mode of = ‘lal revie w of adntinistre itive action, Gold v. Lomento, 004 FE. Supp. 3.°9 (SLDINLY. WG9) s Muhammad . ti v. Divi- - sion of State: Athletic Comm. of New York, 308 F Supp. 11, 15. (8.D.N.Y. 1969); Brockway v. Tofany, 310° F. Supp. 266, 267 (S.D.N.Y. 1970), the coart inplicitly dis- eredits the usefulness of such jidicial review, In respect to the putative claims ‘disse ‘rted by Lockman, Humphrey, Haywood and ‘Escalera regarding additional rent charges, the Second Cirenit ruled that an adversary: , type of hearing must be conducted hy the Authority before such a rent charge can be asserted, notwithstanding that: the Authorit® can establish its right to collect such charge, -when contested by the tenant, only after a ftll-seale trial’ in the Civil C ourt in which the tenant ‘an put, in issue the legal ‘walidity of the charge, the factual hasis hpor which ‘iC is asserted, thea amount of Amazes clined, or any other defense.* | — ee ae The additional rent charge is siscedk by the leagé agregment hetwfen the parties. The additional: rent does not hecome’ a leg: uly enforceable obligation against the, teffan? until there is'a full, de novo trial inthe ( oh ‘ourt of the City of New York. The court has Jin: thon te, decide against the Authority on thi merits, ran Has done so. (Nee N.Y. Real ee Actions Dad Proceedings Law, \ » 745, Appendix Mw p. 127a, “7 Sie ee it this position of the court is dire: ty: at odds with is position In cases MALerIN: ition of tenane Vv (d&scalera, Lup fle v and Rolle), that it way theeuns Wailal nlity of a full seale judicial tri: il j ujion all +a issues that made an adversary-type administra Alive heat- ing essentt il. bo — ! -sToonicr? vo Witsell. “3349, oh : Le tt ob ‘The availability of a comple te tri: iL in he lowest echelow of the New York ( ity court system necessarily negates the “holding that-an adversary- -type hearing ix required hefgre the ihsonaapeg os mit assert an adslitional rént charve.. ‘Lichter v, Luited States, U.S. 742, 791 “192, (1948) ; 385, 399 (1948). Morcover, the procedure followed by ng project manager constitutes - an investigative, pre- litigation proeess (See Appendix Hl, pp. 62-992) designed to help: the Authority deter- tine whether it Will assert an additional rent charge, cand there ‘Lore dite process os nts-are inapplicable. “Flannah y. Larch, | 6 U.S. “420, 441 -H4? esis: ag re Grohaw, 352 0. ». 282 (1957). The consequence of the decision is that before the Au- ‘thority nay even undertake te secure a judement against the Humphreys for the toilet stoppage work it performed, it must conduct an adversary-type hedging toxdetermine vipers it should seek to recover the $3 charge’ in the . Civil Court. Compare Priehe & Sous ve United States, oo2 VW. S. 40%, 411-413 (1947). The Second Cireuit. ad- vaneed no. sound, legal reason why two adversary: ‘typo. proceedings must he pursticd? by the Authority in srich instances, Coli dIhery Vv. Aelly on this *specific point. is to “the contrary... 307 U.S. = YH, 14. At hest the inter. ests of the, tonaats-are Inthe nature of ees rights : (Phillips v. Catnm., 289. i. ss. osp, 5 596-601 (1951). There is no civil liberties issue .stich as freedom of speech, associa- tion, or re listo. anc the tenant has no right: to invoke the irisdietion of the fede ral co under 42 U.S.¢€, ¥ 19837 (See Fisen ve Kastinan, 424 2s 2 mn). te 2 Cir. 1969.) The Seoond ‘C iAcinit rejected the principle of cabatention: in the present cases, To the contrary such principle -was recomme nded by the C ‘ourt, of Appeals for the Third Cir y i ; ‘ . o Ps in Randel v. eels Housing aaoaae 3e4 F. 2d | ~ 151, 157, n. 15 *(1967), cert. denied, sub nom. Avent .v. | Newark Housing Authority, 393 U. S: 870 (1968), which involved termination of several tenanci les: for undesirabil- 5 ee : - * ‘ - This Court, in ordering’ the application of abstention in Reetz v. Bozanich, 897 U.S. 84, 85 (1970). quoting from another;case, recognized that: ‘**. . state law problems -are delicate onés, the resolition of which is not without . - substantial difficulty—certainly for a federal cotiit.” °° The record in‘the? present -cases shows that a complex scheme with detailed proc -edures for‘termination of tenancies has been established) by the Authority in accordance with power granted under section 37(1)(w) of the New York Publie Housing Law (MeKiriney:Consolidate d Laws, Book 444A). “Mie courts of New York State should have the ‘initial opportunity ‘to appraise’ ‘the yalidity. of claims. of Violation of . procedural due process in this, developing fie Id of law. . As the Third Circuit stated in Randell, supra, at pase “lof n. 1a, ‘tthe Clreun stances of this « controversy make. if particularly apprépriate for state courts to act as the initial forum, both because of the: federal legislative pattern’ itself gives jirimary: responsibility to the states for establishment and administration of any low-rent housing project, 42 U.S.C. $1401, and because the Ca particular problems of administering low-rent housine . evictions’ are closely tied to variois ee and tenant actions hefore the courts. of the St ate of New Jersey, In the Randell case, on’ re mand, the Distr Court ap- plied the pr inciple of abstention. The courts of New York: State have de alt with such problems before’ Where public housing tenants have in- voked the reqiirements of the. First and Fourteenth eee ae Peters v. New York City Mausing, Author- - ity, 1 ne d, a O04 4, 147 N.Y.S. 2d 8 859, (2d, Dept. 1955): ae 26 |: insow v. Greenburgh Houstng Authority, 29 A. D, 2d 338, | 340-: SE OSS N.Y. 2d 159 (2d Dept. 1968), appeal pend- ing, N. Ye Court of -Appeals; Manigo Vv. Newel ork City> Housing . . luthority, or Mise. -2d $29, 273 N.Y.S. 2d 1003 (1966), affd. 27> 4.°D. 2d 808,*279 NUYS: 2d- 1014 (1967), lv. app. den, 19) N. Y.-2d 583, cert. denied, 389 U.S. 1008, In re Williams (White Plains Housing Authority), 62: Mise. - 2d 613, 309.N.Y.S. 2d 454 (Sup. Ct. West. Cty. 1970). “In Harrison v. NAAC rx 360. U. S. 167, (1959), a Civil _ Rights-Act, suit, abstention was sanctioned .by- -this) Court to allow the Vi irginia courts tp rule i in : ie first instance on the constitutional issues, eae .: ~ CONCLUSION For ‘the reasons’ stated, this petition for « a writ of | certiorari should be granted. June , INO. | Respectfully submitted, , : ae Harry Levy, | Attorney for Petitioners. - Llano Werintrave, - 7 Of Counsel) yo. ae ) _ cniviic WUURT. UL S 7 . Ll ay + ’ +e IN THE : : SEP 10 1970 Sinead. Cot of the. United States SEA\ VER CLERK OCTOBER TERM, 1970 Nd. 343 _—— —_—$ 2 NEW YORK ( TTY HOUSING AUTH RITY, TRA-S. ROBBINS, ‘ SIMEON GOLAR and ARAMIS GOMEZ, é : Petitioners, against ° ; PEDRO ESCALERA. and ROSE FESCALERA, . , Wesponden - : NEW YORK CITY HOUSING AUTHORITY, IRAS. ROBBINS, SIMEON GOLAR and ARAMIS GOM]I is " Petitioners, °¢ against o ROSE LFE ROLLE, Res; NEW ce ee HOUSING AUTHORITY, IRA §S ROBBINS, . * SIMEON GOL AR and ARAMIS GOM{Z, sf : ‘ ; \ Petitioners aqgamst ‘y) WALTER: LOCKMAN and VIOLA LOCKMAN, Respondents. . - —— NEW YORK.CIFY HOUSING AUTHORITY, IR. = Ke JBBINS, : SIMEON GOLAR 2nd ARAMIS GOMEZ, ; ' . Petitioners, ‘ a gamst CLARENCE HU MPHREY, PHYELIS HUMP HREY, and 1s FANNIE “HAYWOOD, Respondents. . . o REPLY BRIEF IN SUPPORT OF PETITION FOR. A*WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS: FOR THE SECOND CRCUIT & Harry Levy, Attorney. for Petitioners, 230. Broadway. era ees ~~ New. York, New York 10007. Tel. (212) 43325010 HArotp WEINTRAUR, Of Counsel. - - : ais 249 Press ot Fremont Payne, Inc., 417 Canal St., N. ¥.—966—6570 ( 7 ‘ it me TABLE OF CONTENTS : . ° Opinion Below «05655 sc eke ens Saat gaan rae ee ARGUMENT: | - A. These Cases Are Ripe, For Review By This ef |, PEPE e eae He ety Mee Tee y aie _ B. Availability Of Article 78 Judicial Review In The N is York State Supreme Court Ob- viates Lhe Constitutional Questions Raised In ThesSe Cases weet eee ee cree fal oa ree - ¢ C. The Randell And Stewart € ases Are Irrecon- ——— ~Cilable. With The Holding Of The Second ~ Cirenit And Therefore This Court Should Examine The Validity Of The Escalera Judg- merit In Light Of Those Holdings .......... D. There Is An Urgeat Need For Review Of 5 The § Second Circuit Deéision Which Affects Widespread ‘Administrative. Activities Of’ - Public Housing Authorities ........ ha Seen Comelition 32 6 chnecc chou eer SP Re ee Ue ; TABLE OF CASES i fog: : Amalgamated C fothing i\s drke rs of America v. NLRB, 494 F, 24 818 (D.C.C. 1970) «0... 0.. Sees eebes ~ Bour] Jois, Ine. v. (hapinan, 301 U.S. 183 (1937 Draken v. United States, 391 U.S. 123 (1968) ee ae Basia ting Co. » Maryland ‘Casualty (o., 367 Fe 2d 341, 3 Cir. 1966 oa oe sees eeeeeesenes SPAGE .— ) ~ ~ 11 + ’ e . he * “Hl : TABLE OF CONTENTS: : Foe =K - . | . + PAGE? Chicago, Housing Authority v. Stewart, 43-111 2d >t a ev N. FE. 2d 185 g@), cert. de — 397 : ULS21000 (1970) oo... ey eae Se Ar oe ee eal i as oe 8,10 Utok v. Hirshberg, 2581, 2dn6 (4 Cir 1958) a ae ‘Evans ve MeDonnell ’ “Aiveratt cs 395 B ee Cir, to cit ere reper meg a Rite g EEC WIR, SOU. 8. 265.1989 2a os: one Georgia Ry. Co. ¥ Atlantic Coastline It. Co. fa F.2d — 495 (5 Cir, 1967), vert. dem. SSO UL SL Sdd Ls. oe. ere Goldberg ve Nelly, 397 U.S. 254.4 1970) Sorc, ee Holloway vy. Department 6f Housing and. Urbair De- ; velopment, 418 BL 2d 2420.5 Cir. 1969 PED Eee EE 3 Hlolmes ve New York City Housing? ae BYS Pod 262, 2 Cir, 1968 : F : ; : ; ; ; : é : : ; ; ; ; ; ~I Hooke ‘ry. Brookhaven Housing Authority, U.S. Su- ph ime Court, Docket No, 2358 ae epee Ae Hunt Oil Cony. PPC, 424 F.2d 982 (D.C.C. 1970) 0 5 Intl. Longshoremen’s & Warehousemen’s Union y, WNuntz, 354°F. 2d" 165, 0 Cir, 1964 22... =, oy: 4\" Johnson A New Rochelle Housing Authority, cS Mise. 2d 138, 253 N.Y.S. 20 39 (1964) A Ne Ke 8 Johnson vy. Tamsberg, executive. Director, Housing Authority of Charleston, No. 13041, July 31, 1970 , Lee vl Habib, 424 F.2d 891 D.G.CL1970 00. ee. aS May aclusetts Trustees v, United States, a1 UU, 8. 7 o5, 1964 aso... OB ERRRS DRC erase Pacey | | _ Mesehina Vv. Lowery, “34 A. D. 2d 255, 310.N.Y.8. 2d , QOS. App. Div. Ist a. | Eger e ane ar re “sie Ole “ ¥ TABLE OF CONTENTS : } “Tl £ _ ° PAGI Nader vy. General Motors Corp. 25 N.Y. : 2d 60, 307 N.Y.S. 2d G47, 250 N. be. 2d 765. (1S i) ee eee | -¢Potrero Community -Action C omnittee’ v. Housing» Authority of San F rancise 0, +10 FP, ad 974, 9 Cir, , ~ 1969" ages Gu COk CER ey he ee ree Met ire ORE 4: Randell « Newark anise Authority, 384 W. 2d 151 (8d Cir, 1967), cert. denied, sah. vom. Avent: v. “Newark Housing Authority,-393 U.S. S70°(1968y 9, 10 Sanders y. Cruise, 10 Mise: 2d 33, M43 N.Y.S. 2d: _ Sa (1958) bases Neary ew SVAN oe ees veiae ” Ste wart ve hicago’ Housing Author ity, 397 U. S. 1000 (1970) 22... Pores free eekse uate Lee nenes 8.10 Thorpe *. Housing Authority of Durham, 393 T.-S. : 258, 284 (1969) eee re 4 Bee gears aise oe a Re Toomer v. Witsell, 334 U. MF 385 (1948)... 8 United States -v. Storer Broadcasting Co. 21-0. 8. 2 192, 1956 ieee eee cari Here ree ee hy ee United States ex rel, Meadows v. New York, 4260. F. 2d Ali6, 2 Cir. 1900 Se rn eke eT Treks ree xp F- Vinson v. recurs’ Housing Authority. P29 A D.2d B08 (1968), aff'd wo Sor by. C¢ rica of Ap- peals’ of New York, N.Y.LJ., p. 2. col. 2, July 65 1970) ke ee rei it a se ee e av tar oe 2s — Williams v. White Plains Housing Authority. 62 Mise. ', 24 613, 309 N.Y.S. 2d 454 (1970) ¢-....2....... Oe Zwiekler vy. Koota, 389 UL S. 24h (1967 PP ‘Sratures Reies Crrep ’ . ‘ ° ; & ; ~~ New York Public Housing Laws, See. 54, Mehinney’s Laws, Book 444A ....... Jey ta ae oe rR ie a 6 Ride 23(a), Ped. Re Civ, Po nee oo" me ae ene a CS of: a : feb sen lees ‘IN THE’ ~ Sprreme Gout of the Hnited Stites . OC TOD ER TE RM, 1970 ee eee xe \ NEW YORK CITY HOUSING AUTHORITY, IRA S. ROBBINS, creas GOLAR and ARAMIS GOMEZ, ° . : Petitidners ’ : against : / PEDRO ESC. AL ER. A and ROSE ESC: ALERA, ‘ _-Respe mndents. NEW YORK CITY HOU SING AU THORITY, IRA: S. ROBBINS, ae . SIME “ON GOL AR and AR. AMIS COME Z, Petitioners, against «. ROSE LEE ROLLE, , ot Respondent. NEW YORK CITY HOUSING AU THORITY, TRA’ S. ROBBINS c SIME (ON GOL AR and AR. \MIS GOME Pa , CR, : against > * WALTER LOCKMAN and VIOLA LOCKMAN, Wars : ? -Respondents. & x oO ! NEW YORK*Cl TWHOU SING AUTHORITY, IRA S. ROBBINS, . SIME ON GOL AR and AR: AMIS GOME : i Se ae : Petitioners, : * ; : against oe, rf " CLARENCE HUMPHREY, PHY LLIS HUMP HREY, and FANNIE HAYWOOD, 7% we ~ » Respondents. REPLY-BRIEF IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CRCUIT F. Opinion Below s - ee ‘Since petitioner’s brief was served, the opinion 6f the Court of Appeals in these cases has beenyeported at 425 F. s . i _«@ “ Without opinion by the. Court of Appeals. of New York on duly 1, 1900 (N.Y. July 6, 1970, pe 2, -cql. 2). ARGUMENT | tee] A. These Cases Are Ripe For. Review By. This Court. “ N The action ef the + ‘ourt. OF Appeals, is ripe for. re- view by this Court -beeause (1) categorical- holdings jin‘ respect to significant procedural due process requifements pertaining’ to public housing authorities were rendered “without. significant qualijeation.and (2) there are no gen=. Wine issues of material fact bearing on the constituPional questions raised ty respondents. . Despite contentions by _tespondents ‘that the Second’ Circuit decigion was made at thet pleadings atage (Escalera-Rolle sriel, ps Oy Lockmet-thunphrey Briet, jy 5). and that it-is therefore not Vipe for consideratson hy this, Court, the Second Cir- ass ruled, in categorical terins, that: (* First. suminary notices sigh asa@hat sent to the, ten- suits here of the non-desirable conduct under conside- ® ration by the TRB is inadequate.” (Appx. A to Pet., ys Ida; 425 F.2d 855, at 862)3.-00- 027 i - Second, denying tenants access. to the material in their folders, when the entire folder is ‘considered by — the TRI in its determination of eligibility, deprives | the tenants? of due process,” (Apps. 7A’ to Pet.,. p. loa, 245 FL 2dsat 862) 3, 7 ‘Third, denting- the. tenant the fromt and cross-examine persons who supplied infor- ‘ ination in the tenant's folder upon which LEA aetion ix erounded is inproper. C1.) _{* Finally, we find that the ITA’s failure to disclose the - rules and regulations in the TRB Handbook govern- ° Yd Soa (1970). In addition, the judement of the Appellate — ‘+ Division, Second Department, in Vinxon v. Greenburgh — Fanti liathority, 290A D 2d 338 (1968), was affirmed - opportunity to con- ~ : ie inge the “TRB panel at the hearing concerning termi-- nation for non-desirability way ‘be found to be im- “ : } > - , Fe ba Ps Ogre proper.”’ ds ies to db Ain ber 425 F.2d at 863). Although the last portion of. the Court of Appeals hold- ing does aidiit to some aialifieation as to the ultimate finding to be made by the Distriét Court-upon the trial of the actions, it is but a tangential 1 igure: (because the $tand- ‘ards for determining non- desirable: condhict ‘are set forth in the Authority letter to the tenant setting the matter down-for a hearing, see Appx. A, p. 6a; 425 F. 2d at 858),. and serves only-to underline the ‘‘lai of the case” finality of the Court's heldings in respect to. the other three niat- ters on which it rendered judgment. The Court afso ruled .that the Authority’s ‘‘precedures for terminating tenan- cies ‘on the ground of violation of-rules and. regulations and for assessing additional rent charges’? -are constitu- tionally deficient in respect to the first three, quoted | mat- ters) (/d.).° : a / i. ae yy Accordingly, something more than a hare reshand to the District Maurt to consider and determine the issues be- tween the parties under. the Civil Rights Act was effected _ by the Second Cirenit de ‘cision (C ompare Holloway v. De- partment of Housiig and. Urban Development,-418 ‘F. 2d 242, 5 Cir. 1969; Nader v. General Motors Corp., 25 N.Y. 9d 560,-571, 307 N.Y.S. 2d 647.-656, 255 N. E. 2d TOD, 1970. sreitel, J. concurring) - In ——s its decision, the Second: Cireuit had the Authority’s -printed procedures before it, "supplemented “by affidavits as to Authority practices executed by the Vice-Chairman. of the Authority, Ira S. Robbing, Exsq., aml ‘the Court relied .on these’ and other materials, out- side of the pleadings, in formulating “its ‘holdings (See > 425 F.2d at 857 n. Iz p. 89S ni 4 p. 860 n.d: p. 863 n. r & . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0174%3A2. Public record. Not legal advice.