Thorpe v. Housing Authority of City of Durham/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

Petitioner and her children have been tenants in a low-income housing project constructed with federal and state funds and operated by the Housing Authority of the City of Durham, an agency of the State of North Carolina. The Housing Authority was established under state law and is 'a public body and a body corporate and politic, exercising public powers.' N.C.Gen.Stat. § 157-9 (1964). It has 'all the powers necessary or convenient to carry out and effectuate the purposes and provisions' of the North Carolina Housing Authorities Law (N.C.Gen.Stat. § 157-1 et seq. (1964)), including the powers 'to manage as agent of any city or municipality * *  * any housing project constructed or owned by such city' and 'to act as agent for the federal government in connection with the acquisition, construction, operation and/or management of a housing project.' Id., § 157-9 (1964).

The lease under which petitioner has occupied the project had an initial term from November 11 to November 30, 1964, and provided that it would be automatically renewed thereafter for successive terms of one month, provided there were no changes in income or family composition and no violations of the lease terms. The lease provides that '(t)he Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen * *  * days prior to the last day of the term.' The lease 'shall be automatically terminated at the option of the Management' with an immediate right of re-entry and all notices required by law waived, if the tenant misrepresents a material fact in his application or if 'the Tenant fails to comply with any of the provisions of (the) lease.'

As I have said, petitioner and her children moved into their home in the project on November 11, 1964. All apparently went well for eight months; the record reveals no complaints from the manager of the housing project. On August 10, 1965, petitioner was elected president of the Parents' Club, a group composed of tenants of the housing project. On August 11, 1965, the Housing Authority's Executive Director delivered a notice that petitioner's lease would be canceled effective August 31, at which time she would have to vacate the premises. No reasons were given for the sudden cancellation. The Authority merely referred to the provision of the lease stating that management may terminate the lease by giving the tenant notice 15 days prior to the last day of the term.

Petitioner requested a hearing to determine the reason for the termination; the request was summarily denied. Since she was given no reason and no hearing, petitioner refused to vacate her home. The Housing Authority brought a summary ejectment action in the Justice of the Peace Court of Durham; the court ordered that petitioner and her family be removed from their home. Petitioner appealed to the Superior Court. It was stipulated that the Superior Court could make findings and decide the case on the basis of the stipulations and affidavits. Petitioner's motion to quash claimed that her 'eviction primarily resulted from her community activities as an organizer of tenants, thus constituting an unconstitutional abridgement of her freedom of expression and a denial of equal protection of the laws.' Her affidavit alleged 'that her eviction was prompted by (the) Manager of the Housing Authority, who wants to get her out of the project because of her efforts to organize the tenants of (the housing project) * *  * .' It was stipulated that the Executive Director of the Housing Authority would testify that 'whatever reason there may have been, if any, for giving notice to (petitioner) of the termination of her lease, it was not for the reason that she was elected president of any group organized in (the housing project) *  *  * .' (Emphasis added.) The Superior Court found that petitioner had not been evicted due to her efforts to organize the tenants nor due to her election as president of the Parents' Club. The court held that the Housing Authority was not required to give petitioner a hearing and was not required to give any reason for the lease termination.

The North Carolina Supreme Court affirmed. 267 N.C. 431, 148 S.E.2d 290. It held that the Housing Authority is the 'owner' of the apartment and that petitioner 'has no right to occupy it except insofar as such right is conferred upon her by the written lease which she and the (Housing Authority) plaintiff signed.' Id., at 433, 148 S.E.2d, at 291. Since petitioner had refused to quit after the Housing Authority terminated the lease, she could be evicted so as to restore to the Authority' the possession of that which belongs to it.' Id., at 433, 148 S.E.2d at 291-292. The court thought it 'immaterial what may have been the reason for the lessor's unwillingness to continue the relationship of landlord and tenant * *  * .' Id., at 433, 148 S.E.2d, at 292. Under the rationale of the North Carolina Supreme Court, a public housing authority, organized under state law and operating a housing project financed by federal and state funds, is assimilated to the position of a private property owner who can terminate a lease for any reason or no reason at all.

The circular upon which the Court bases its decision to vacate and remand comes from the office of the Assistant Secretary for Renewal and Housing Assistance and was issued February 7, 1967, after we granted certiorari. It is directed to 'Local Housing Authorities, Assistant Regional Administrators for Housing Assistance, and HAA Division and Branch Heads' and reads in part:

'Since this is a federally assisted program, we believe it is     essential that no tenant be given notice to vacate without      being told by the Local Authority, in a private conference or      other appropriate manner, the reasons for the eviction, and      given an opportunity to make such reply or explanation as he      may wish.'

It goes on to provide that '(i)n addition to informing the tenant of the reason(s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing,' specifies the information to be contained in the record and provides that the records are to be available to HUD representatives for review.

This circular superseded a prior circular which stated that the Public Housing Administration 'strongly urge(s), as a matter of good social policy, that Local Authorities in a private conference inform any tenants who are given (notices to vacate) of the reasons for this action.'

This case presents two issues, neither of which is resolved by the circular. The first is whether a tenant in a publicly assisted housing project operated by a state agency can be evicted for any reason or no reason at all. The second is whether a tenant in such a housing project can be evicted for the exercise of a First Amendment right.

The circular merely provides that the tenant be told 'the reasons for the eviction, and (be) given an opportunity to make such reply or explanation as he may wish.' From this it may be inferred that the Housing Authority must have a reason for the eviction. But the circular does not specifically state the reasons which can support eviction; it does not state that a tenant cannot be evicted for his stand on civil rights; it does not even broach the subject. It is argued that the circular provides that the lease can be terminated only after an administrative hearing. It certainly would be desirable if a housing authority held a hearing prior to the termination of the lease. The circular, which may be no more than a press release, does not so provide. Moreover, is there a constitutional requirement for an administrative hearing where, as here, the tenant can have a full judicial hearing when the authority attempts to evict him through judicial process? Petitioner has had a hearing in the state courts. The immediate question is what reasons can support an eviction after hearing.

Over and over again we have stressed that 'the nature and the theory of our institutions of government, the principles upon which they are supposed to rest * *  * do not mean to leave room for the play and action of purely personal and arbitrary power' (Yick Wo. v. Hopkins, 118 U.S. 356, 369-370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220) and that the essence of due process is 'the protection of the individual against arbitrary action.' Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 302, 57 S.Ct. 724, 729, 81 L.Ed. 1093; Slochower v. Board of Higher Education, 350 U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692. Any suggestion to the contrary 'resembles the philosophy of feudal tenure.' Reich, The New Property, 73 Yale L.J. 733, 769. It is not dispositive to maintain that a private landlord might terminate a lease at his pleasure. For this is government we are dealing with, and the actions of government are circumscribed by the Bill of Rights and the Fourteenth Amendment. 'The government as landlord is still the government. It must not act arbitrarily, for, unlike private landlords, it is subject to the requirements of due process of law. Arbitrary action is not due process.' Rudder v. United States, 96 U.S.App.D.C. 329, 331, 226 F.2d 51, 53.

The recipient of a government benefit, be it a tax exemption (Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460), unemployment compensation (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965), public employment (Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692), a license to practice law (Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574), or a home in a public housing project, cannot be made to forfeit the benefit because he exercises a constitutional right. In United States v. Chicago, M., St. P. & P.R. Co., 282 U.S. 311, 328-329, 51 S.Ct. 159, 163-164, 75 L.Ed. 359, the Court said that 'the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee's submission to a condition prescribed by the state which is hostile to the provisions of the federal Constitution.' This was in the tradition of Frost v. Railroad Comm'n, 271 U.S. 583, 594, 46 S.Ct. 605, 607, 70 L.Ed. 1101, where the Court emphasized that 'If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.' In Speiser v. Randall, supra, at 518, 78 S.Ct. at 1338, we recognized that 'To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a 'privilege' or 'bounty,' its denial may not infringe speech.' No more can a tenant in a public housing project be evicted for the exercise of her right of association, a right protected by the First and Fourteenth Amendments. See, e.g., NAACP v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231; State of Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301; NAACP v. Button, 371 U.S. 415, 430-431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405.

This does not mean that a public housing authority is powerless to evict a tenant. A tenant may be evicted if it is shown that he is destroying the fixtures, defacing the walls, disturbing other tenants by boisterous conduct and for a number of other reasons which impair the successful operation of the housing project. Eviction for such reasons will completely protect the viability of the housing project without making the tenant a serf who has a home at the pleasure of the manager of the project or the housing authority.

Here, the Superior Court found that petitioner had not been evicted because she had engaged in efforts to organize the tenants of the housing project or because she had been elected president of the Parents' Club. On appeal to the North Carolina Supreme Court, petitioner contended that the finding was erroneous. The State Supreme Court did not pass on the finding of the Superior Court since it concluded that the Housing Authority could terminate the lease and evict petitioner for any reason. As I have said, it is argued that the circular of the Department of Housing and Urban Development answers petitioner's claim that she was entitled to an administrative hearing before her lease was terminated. But petitioner has already had a hearing in the state courts. And the status of the circular, whether a regulation or only a press release, is uncertain, an uncertainty which the Court does not remove. Vacating and remanding 'for such further proceedings as may be appropriate in the light of the * *  * circular' therefore furnishes no guidelines for the state courts on remand, and does not dispose of the basic issue presented. I would vacate and remand to the state courts to determine the precise reason why petitioner was evicted and whether that reason was within the permissible range for state action against the individual.

Mr. Justice WHITE, dissenting.