Daily Development for Tuesday, April 2, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

HOUSING; FEDERAL HOUSING; "ZERO TOLERANCE" DRUG PROGRAM: U.S. Supreme Court upholds interpretation of federal housing statutes that authorizes, but does not require, expulsion of any tenant if guests or children of that tenant possess or traffic in drugs, regardless of personal knowledge or involvement of the tenant.

HUD v. Rucker, 2002 WL 272444 (U.S.S.Ct. 4/01/02)

The basic issue in this case was previewed in the report of Memphis Housing v. Thompson, 38 S.W.3d 504 (Tenn. 2001), set forth as the DD for 9/4/02 on the DIRT website (www.umkc.edu/dirt). This case overrules the interpretation in Memphis and in an earlier case, Tucker v. Oakland Housing Authority, 237 F.3d 1113 (9th Cir. 2001), which held that the statute should be interpreted to expose tenants to eviction only if they had personal knowledge or or involvement in drug trafficking.

The court here concludes that the "zero tolerance" policy goes beyond that, and authorizes housing authorities, pursuant to mandated language in the authority leases, to terminate the tenant's occupancy whenever any criminal activity that threatens the health, safety or peaceful enjoyment by tenants in a public housing project, or more specifically, drug related criminal activity on or off the premises by the tenant, any member of the tenant's household, or any guest or other person under the tenant's control."

Tenants had argued that the above language requires that the tenant know, or have reason to know, of the offending activity in order to be liable for termination of the lease. The Housing Authority had argued that there is no such scienter requirement. "Zero tolerance" means that, innocent thought the tenant may be, if those around tenant are involved in drugs, the tenant must leave. The case, clearly designed to but some "bite" into the decision for the court, involved a disabled tenant whose caretaker and associates of the caretaker was found to be in possession of cocaine on the premises; grandparents whose grandchildren were caught smoking marijuana in the housing project parking lot, and a mother whose resident daughter was caught with cocaine three blocks away from the project.

Much of the relatively brief unanimous opinion (Breyer did not participate) deals with a parcing of the critical language, demonstrating that the phrase "under the tenant's control" modifies only "other person"

and does not modify the terms "member of the tenant's household" or "any guest." If household members or guests are involved in drug crimes, whether or not they are under tenants control, the tenant is liable to get ousted.

The court differentiates the statutes in question here from the drug crime civil forfeiture statutes under which the government can confiscate property used in a drug crime or acquired with its proceeds. That statute has an "innocent owner" provision that is not involved in the housing statute here.

The court then supplied the rationale for the Congressional judgment which it had defined (quoting from the Federal Register):

"[T]here is an obvious reason why Congress would have permitted local public housing authorities to conduct no-fault evictions: Regardless of knowledge, a tenant who "cannot control drug crime, or other criminal activities by a household member which threaten health or safety of other residents, is a threat to other residents and the project."

Although the Ninth Circuit en banc panel had found that a narrower interpretation of the statute was necessary to avoid Constitutional invalidity, the Supreme Court concluded that the above rationale was completely supportable and safely within the Constitutional discretion of the Congress.

Some other Constitutional authority had held that government cannot deprive parties of property interests without any relationship to their own wrongdoing. The Court here distinguished that authority on the grounds that it dealt with acts of government as sovereign. Here the government is doing nothing more than contracting for housing. The Court does not deny that the tenants had an existing property right in that housing, but that property right, as indicated, is conditional under the lease. The tenants are assured of Due Process in the determination of whether the conditions on that right had been violated, since the Court assumes there will have to be an eviction procedure involving a court hearing.

Comment 1: Note that many summary eviction statutes or public housing processes might not have invovled a full "due process hearing" on these issues. You can bet that they will now.

Comment 2: Interestingly, Judge Rehnquist criticized the Ninth Circuit for resorting to legislative history to interpret the statute because "reference to legislative history is inappropriate when the statute is unambiguous." Of course, ambiguity is in the eye of the beholder. Were we dealing with a party less august than a Supreme Court Chief Justice, one would be tempted to say that he'll eat those words someday.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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