Simmons v. West Haven Housing Authority/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

This was a summary procedure brought by a landlord to obtain possession from his tenants for nonpayment of rent. The trial court found for the landlord and the tenants appealed.

Connecticut law requires one taking an appeal in such an action to post a bond with surety. The tenants showed they were financially unable to post the bond and claimed that to require a bond with surety to obtain an appeal would under those circumstances be a denial of equal protection. The trial court refused to waive the requirement for a bond with surety saying that 'the appeal is being taken for the purpose of delay.'

The Circuit Court affirmed. The Appellate Division ordered the termination of a stay of execution. 5 Conn.Cir. 282, 250 A.2d 527. The Supreme Court denied certification.

I would reverse this judgment. A rich tenant, whatever his motives for appeal, would obtain appellate review. These tenants, because of their poverty, obtain none. I can imagine no clear violation of the requirement of equal protection unless it be Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Whether the case is criminal or civil, wealth, like race, is a suspect criterion for classification of those who have rights and those who do not. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169; Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891.

What the merits of the tenants' appeal may be is not for us to say. But the appeal raised questions not easily answered. The terms of the lease stated that it could be terminated by not less than 30 days' notice, while apparently no more than five days' notice was given. A housing authority that is federally assisted has the right by 42 U.S.C. § 1404a (1964 ed., Supp. V), 'to maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action is authorized by the statute or regulations under which such housing accommodations are administered.' There is not a word in appellee's argument that indicates that the federal regulations permit eviction on five days' notice where the lease requires 30 days' notice.

The case has been argued as if appellants are 'cheap skates' seeking to get something for nothing. That simply is not true, for the record shows:

'Mrs. Faulkner: Your Honor, may I urge upon you that if you     grant our motion to have the defendants deposit the rent in      court the landlord will not be hurt any further by delay in      this proceedings. He will be protected because the monthly     rent will be deposited. If he is successful on appeal he will     be able to get the rent.

'The Court: Do you suggest, if that should be the conclusion,     that the clerk could issue an execution upon failure to pay?

'Mrs. Faulkner: Yes.

'The Court: In other words, you will be willing to stipulate     on behalf of your clients that if the rent were not paid that      the clerk would, may be empowered forthwith to issue an      execution?

'Mrs. Faulkner: Yes, Your Honor.

'The Court: That appeal to you all right?

'Mr. Philbin: Frankly it doesn't. During this period of time,     it could take a considerable period of time, even if the tenant pays the fund into the clerk's      office, they are not available to the plaintiff and we are      still as a practical matter losing the rents during that      period of time. Eventually if we prevail and get this money     this would be an extended period of time.' App. 19-20.

The State of Connecticut represents that tis summary eviction statute is based on an English Act of 1737, 11 Geo. 2, c. 19; and with all respect, the decisions below reflect an 18th century lawyer's approach to the task of protecting a landed interest. Every appeal of course entails delay; and in a sense all appeals are antithetical to the spirit of summary eviction. But we live today under a different regime. Unlike 1737, appellate courts are no longer closed to the poor. Eviction laws emphasize speed for the benefit of landlords. Equal protection often necessitates an opportunity for the poor as well as the affluent to be heard. I disagree with the Court that the issue is not squarely presented in this case. I would reverse this judgment.