by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

LANDLORD AND TENANT; RESIDENTIAL; PUBLIC HOUSING; DUE PROCESS: When a public housing tenant receives adequate notice, right to counsel, opportunity to refute evidence and a decision on the merits, the due process elements required for the termination of a public housing residency are satisfied. Hinojosa v. Housing Authority, 896 S.W.2d 833 (Tex. App.--Corpus Christi 1995), writ dism'd w.o.j. (1995).

The court found that the tenant was provided with notice detailing gang-related activities by her son in violation of her lease, had the opportunity to be represented by counsel, cross-examined witnesses, called witnesses in her defense and participated in two informal grievance hearings and a jury trial on the merits. Therefore, the tenant received due process of law and was property evicted.

The tenant had argued that an initial notice of default was defective in that it failed to provide specifics of the alleged defaults, and that this notice should have been declared a complete nullity. Instead, the court had abated the hearing and permitted the filing of an additional, more detailed notice. The court held that such abatement is within the discretion of a trial court, so long as adequate opportunity to become aware of and defend against charges is provided.

In general, in response to the various allegations, the court tended to look to the actual fact of the tenant's opportunities to participate, rather than to any technical requirements. This led the court to conclude that substantially adequate due process guarantees existed.

Comment: One of the problems with the "substantial satisfaction" test is that the aggrieved party - here the tenant - is faced with the choice of mustering the best defense possible, and thus perhaps demonstrating that notice, hearing and timing problems gave no disadvantage, or the choice of providing an inadequate defense - demonstrating that the procedural defects indeed caused a problem - but thereby risking a loss on the merits.

We also ought to keep in mind that the tenant in this case is not a sophisticated business person used to dealing with bureaucracy and represented by well paid counsel. Shouldn't the standard of "fundamental fairness" stretch a little in such a case?

On the other hand, the Supreme Court has encouraged the federal government to look to the substance rather than technical niceties in providing due process throughout its gargantuan welfare system. Thus, there are few clear cut procedural requirements similar to those that might exist in a court considered litigation. The government couldn't afford all the panoply of a trial in every public housing eviction. Unfortunately, each little case, though of little moment to the federal bureaucracy, represents a crisis in the life of the affected person. Can one "cost benefit" the Constitution?

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