HOW A RECENT, UNANIMOUS SUPREME COURT PUBLIC HOUSING DECISION "EXILES COMPASSION FROM THE PROVINCE OF JUDGING"

By MICHAEL C. DORF

Wednesday, Apr. 03, 2002

In 1988, at the height of the crack cocaine epidemic, Congress enacted a statute barring tenants involved in illegal drug activity from public housing. Last week, in Dep't. of Housing and Urban Development v. Rucker, a unanimous Supreme Court gave the statute a truly Draconian reading.

The Court interpreted the statute to authorize the eviction of even those public housing tenants who did everything within their power to prevent their relatives and guests from bringing drugs into their homes. This interpretation is defensible - the statute can indeed be read to reach tenants such as these - but it is hardly inevitable. A more compassionate and fair interpretation was also possible. Sadly, however, the Court did not opt for it.

It is not surprising that a majority of the Rehnquist Court would be unmoved by the pleas of public housing residents. What is more alarming about Rucker is its unanimity: Not a single Justice gave voice to the concerns of the poor. Nor did a single Justice recognize the deep, plain unfairness in evicting an innocent tenant who has shown that he or she has done everything possible to ensure that drug use does not take place in his or her apartment.

The Statute and the HUD Regulation

The relevant statutory language states that a "public housing agency shall utilize leases which . . . provide that . . . drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy."

To give effect to this provision, HUD adopted a policy authorizing eviction even when the "tenant did not know, could not foresee, or could not control behavior by other occupants of the unit." If, for example, a caregiver for an elderly or disabled occupant of public housing uses cocaine without the occupant's knowledge, the housing authority can evict the occupant.

That example is not made up. It is what happened to Herman Walker, one of the plaintiffs in the case before the Court - and a 75-year-old disabled public housing tenant whom the Oakland Housing Authority sought to evict from his home under these very circumstances.

The Oakland Housing Authority also sought to evict 63-year-old Barbara Hill from her home of 30 years because her grandson possessed marijuana in the apartment complex's parking lot. The Housing Authority did not claim that Walker or Hill had in any way facilitated, condoned, or even had reason to know about the drug activity.

The Plaintiffs' Argument: A Silent Statute, And A HUD Policy That Goes Too Far

The plaintiffs in Rucker argued that the statute itself (unlike the HUD policy) is silent on the question of the degree of culpability of a public housing tenant that is necessary to trigger eviction. The statute's language, quoted above, appears to support this argument.

Must the tenant know of the illegal drug activity? If not, must he or she at least have acted recklessly or negligently with respect to the risk of illegal drug activity? As the plaintiffs noted, these questions cannot be answered based on the statute itself, for the statute does not specify a mental state.

Thus, the plaintiffs argued, HUD was unjustified in assuming, when it adopted its formal policy, that Congress intended evictions to result even for completely innocent tenants - those who "did not know, could not foresee, or could not control" the drug activity for which they were to be evicted.

The Lower Courts' Divided Decisions - Ending In A Win for the Plaintiffs

The federal district court agreed with the plaintiffs' contentions. As a result, it enjoined the Oakland Housing Authority from evicting tenants "for drug-related criminal activity that does not occur within the tenant's apartment unit when the tenant did not know of and had no reason to know of" it.

A three-judge panel of the Court of Appeals for the Ninth Circuit then reversed the district court's ruling. However, a larger panel of that court subsequently reinstated the district court's injunction.

That larger panel, called an en banc court, relied on two additional arguments. First, the court emphasized that the statute refers to a "person under the tenant's control." Accordingly, when the person engaged in the illegal drug activity is completely beyond the control of the tenant, the tenant should not be held accountable.

Second, the en banc court thought that permitting the HUD policy to stand would potentially violate the constitutional rights of public housing tenants. A lease is property, and for the government to take away that property without any showing of wrongful conduct by the tenant is - in the words of both the Fifth and Fourteenth Amendments - to "deprive any person of . . . property without due process of law."

The Supreme Court Reverses, and Rules Against the Tenant-Plaintiffs

The Supreme Court rejected each of these arguments in turn - holding that the statute sweeps in even blameless tenants, and suggesting that in doing so, the statute is perfectly constitutional.

First, the Justices said that the statute is not truly silent with respect to mental state. Rather, by not specifying a mental state, the Court reasoned, the statute makes clear that it requires none. The statute thus permits eviction regardless of the tenant's mental state--in other words, no matter how unknowing, unwilling, or otherwise blameless the tenant may have been with respect to the illegal drug use of third parties.

Second, with respect to the "under the tenant's control" language, the Supreme Court said that these words only applied to the preceding phrase "other person," and only required that the tenant have admitted the "other person" to the apartment. As noted above, the statute refers to a "guest or other person under the tenant's control." Accordingly, the Court thought that a "person under the tenant's control" simply meant a person who, like a guest, had been permitted onto the premises by the tenant.

Thus, according to the Court, a person was "under the tenant's control," for purposes of the statute, simply in that he was on the premises. He did not also have to be "under the tenant's control" in the sense that the tenant could reasonably have stopped him from using drugs in the apartment. The result is that a grandmother can be said to have her grandson's friends "under [her] control" if she let them in while he was out - and can lose her apartment if they use drugs there, even if she tries and fails to stop them.

Third, the Court rejected the due process objection - the argument that the statute should be construed to include a blameless tenant exception so as to avoid rendering it unconstitutional. Courts may, under established principles of constitutional interpretation, interpret a statute narrowly - here, so as not to reach innocent tenants - to preserve its constitutionality, on the theory that Congress would not have sought to pass an unconstitutional statute.

But the Court said that the principle of narrow construction only applies where a statute is unclear. Because the Justices thought the statute unambiguously rejected an innocent tenant defense, the narrow construction principle did not come into play. Any claim that the statute operated to deny due process in a particular case, the Court said, could only be raised in the state court eviction proceeding. Not content to put the issue aside, however, the Court strongly hinted that it thought the due process objection without merit.

Finally, the Court explained that HUD had a sound reason to reject an innocent tenant defense: By holding tenants strictly accountable for illegal drug activity in their dwellings, the HUD policy gives tenants a very strong incentive to do whatever it takes to prevent their relatives and guests from engaging in such activity.

Although technically defensible as a matter of statutory interpretation, the Court's decision in Rucker was hardly dictated by the statute. Both the district court and the en banc court certainly thought otherwise. And had the Court taken the due process argument more seriously, it could have chosen a reading of the statute that not only would have been more compassionate, but would have avoided future constitutional challenges.

Moreover, the Supreme Court's policy argument misses the point. No matter what their incentives, tenants are not in a position to control unforeseeable conduct by third parties--except in the wholly unrealistic sense that everything is, at some level, foreseeable.

Not a Single Voice of Compassion Left on the Court?

In an influential 1964 article in the Yale Law Journal, Charles Reich spoke of "the new property." Reich argued that the Constitution, which was adopted in substantial measure as a means of preserving the property rights of slaveowners, was becoming a vehicle for protecting the interests of ordinary people, poor as well as rich.

In its 1970 decision in Goldberg v. Kelly, a majority of the Court cited Reich's article on the way to ruling that welfare recipients have a right to a hearing before they have their benefits taken from them. The benefits, as the Court saw it, are no less the "property" of a poor person than a mansion is the property of a rich person. Neither can be taken away without due process of law - meaning notice and a hearing.

As the 1970's progressed, Reich's hope that the Court would interpret the Constitution to provide special protection for the rights and interests of the downtrodden was repeatedly dashed. Still, as recently as the late 1980s, there was at least a two-sided debate on the Supreme Court about the question - for example, in the 1989 case of DeShaney v. Winnebago County Social Services Dep't, which like Rucker and Goldberg, called upon the Court to interpret what "due process of law" means for those who are disadvantaged.

In DeShaney, the Court held that a state child welfare agency could not be held constitutionally accountable for what amounted to criminal recklessness in failing to prevent the gross abuse of an infant. But Justices William Brennan, Thurgood Marshall, and Harry Blackmun all dissented passionately.

Taking issue with the majority's claim that its result was required by precedent, Justice Blackmun argued that the due process clause was much more open-ended than the Court acknowledged. Faced with such ambiguity in the relevant legal text, he said, "compassion need not be exiled from the province of judging."

In the last decade, Justices Brennan, Marshall and Blackmun have all passed away. And though it is fashionable to speak about conservatives and liberals on the Supreme Court, Rucker reveals that this is a highly contextualized categorization. Judged by the standards of the previous generation, there are no strongly committed liberals on the current Court.

No doubt that fact reflects both major political parties' turn to the right. Justices Brennan and Blackmun were both appointed by Republican Presidents. By contrast, the current President Bush has signaled that he would strengthen the Court's conservative bloc if given the opportunity, while President Clinton, the only Democrat to appoint any Supreme Court Justices in the last thirty-five years, named two moderates. Thus we are unlikely to see Justices like Marshall, Brennan, or Blackmun any time soon.

Even if one thinks (as I do) that the last generation's liberal Justices sometimes under-appreciated the social costs of the rights they recognized, surely there is value in having a Court that includes their perspective. Our current Court is, in this respect, the poorer for its unanimity.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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