Turner v. Chicago Housing Authority, 91-3003

• Decision Date: 29 July 1992
• Docket Number: No. 91-3003,91-3003
• Citation: 969 F.2d 461
• Parties: Eddie Lee TURNER and Mozella Donner, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. CHICAGO HOUSING AUTHORITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 461

969 F.2d 461

Eddie Lee TURNER and Mozella Donner, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. CHICAGO HOUSING AUTHORITY, et al., Defendants-Appellees.

No. 91-3003.

United States Court of Appeals Seventh Circuit.

Argued April 1, 1992.

Decided July 29, 1992.

Catherine Cardwell MacCarthy (argued), Susan H. Rosenberg, Robert J. Mendes, Susan Comory, Mandel Legal Aid Clinic, Timothy Huizenga, Legal Assistance Foundation of Chicago, Daniel J. Delaney, Mayer, Brown & Platt, Chicago, Ill., for plaintiffs-appellants.

James J. Casey, Fred J. Posont, Bradford T. Yaker, Peter M. Shannon, Jr. (argued), Keck, Mahin & Cate, F. Willis Caruso, Chicago Housing Authority, Chicago, Ill., Jill E. Evans, Keck, Mahin & Cate, Los Angeles, Cal., for defendants-appellees.

Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Time has overtaken this case. Shaky at the outset, it is moot today.

Eddie Lee Turner and Mozella Donner rent apartments from the Chicago Housing Authority. Each faced eviction because of crimes committed, on the CHA's grounds but outside the rented apartment, by a son. The CHA commenced eviction proceedings in state court against Turner and Donner, contending that they failed to supervise the conduct of their guests. (The emancipated sons occasionally visit their mothers.) Eventually the CHA dismissed these proceedings, so Turner and Donner kept their apartments. While the state cases were pending they filed this suit under 42 U.S.C. § 1983, contending that the CHA's efforts to enlist parents into policing the conduct of their children--more generally, to induce tenants to be vigilant about the conduct of friends and relations on the CHA's grounds--violates the Constitution, and particularly a "right of intimate association."

The district court certified a class of all tenants whose leases were terminated because of the conduct of guests and relatives outside the rented apartment yet did not have eviction proceedings in state court. The limitation is designed to avoid Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), for tenants with current cases, and principles of issue and claim preclusion (collateral estoppel and res judicata) for tenants whose state cases are done. Eventually the court recognized that the two representative plaintiffs are not members of the class so defined. The judge then amended the definition to admit exactly two persons who have had eviction proceedings--Turner and Donner--into the class. This is a dubious move. Turner and Donner are not situated similarly to other tenants; Turner and Donner confronted the CHA and won, while the other members of the class were at risk. The representatives and the other members of the class accordingly have disparate interests, making the jerry-built class definition suspect. Cf. General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (rejecting the "across-the-board" approach to defining classes); Kremens v. Bartley, 431 U.S. 119, 135-36, 97 S.Ct. 1709, 1718, 52 L.Ed.2d 184 (1977); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). Whether the problem is curable is a subject we need not decide, given the supervening events.

The CHA's policy was based on p 9(k) of its standard lease: "The Tenant shall ... conduct himself and cause other persons who are on the premises with his consent to conduct themselves in a manner which will not disturb his neighbors' peaceful enjoyment of their accommodations and will be conducive to maintaining the development in a decent, safe and sanitary condition". The district court granted summary judgment in favor of the class, on pendent state grounds, after determining that "the premises" refers to the apartment and not the common areas of the CHA's buildings and grounds. 760 F.Supp. 1299, 1305-08 (N.D.Ill.1991). The court issued an injunction forbidding the CHA to evict anyone on account of a guest's misconduct outside the leased apartment. The order states: "[D]efendants are permanently enjoined from terminating the tenancy of a CHA leaseholder under paragraph 9(k) of the current CHA dwelling lease based on conduct which occurs outside the leaseholder's dwelling unit".

Having decided the case in the plaintiffs' favor and awarded them the relief they set out to obtain--for p 9(k) was the only provision of the lease on which the CHA relied--the court nonetheless pressed on. It determined that disputed factual questions prevented summary judgment on the constitutional questions and held a bench trial. After finding, among other things, that the "CHA does not have a policy of holding tenants responsible for acts of relatives that is different from the policy applied to other nonoccupants or guests", the court held that the CHA had not violated the tenants' associational rights. It observed that the CHA not only does not discriminate against "intimate" associates but also that state courts offer an adequate opportunity to contest the CHA's conclusions. (To remove a tenant, the CHA must bring a forcible entry and detainer action. Plaintiffs do not contend that it has resorted to self-help evictions.) The final judgment states: "The Court finds that defendants have not violated the class members' rights to freedom of association under the First Amendment as alleged in the Second Cause of Action; ... The Court finds that paragraph 9(k) of the CHA dwelling lease is not unconstitutionally vague or overbroad as alleged in the First and Fifth Causes of Action". 771 F.Supp. 924.

The CHA did not appeal from the injunction curtailing its enforcement of p 9(k). So the tenants have won. Nonetheless they appeal, asking us to declare that p 9(k) violates the Constitution.

Whether p 9(k) does or does not violate the Constitution has no effect on the tenants' rights. They set out to obtain an order blocking the CHA's use of p 9(k) to evict persons whose guests misbehave in common areas. They obtained that relief. Having decided the case by interpreting the lease, the district court should have stopped. Constitutional interpretation should not be offered without solid justification of a kind missing once a state-law ground supplies a complete foundation for decision.

At oral argument counsel for the class contended that the prospect of recovering damages for emotional distress on learning that the CHA was enforcing p 9(k) requires a constitutional decision even after that clause had been enjoined under state law. No such argument may be found in the briefs, and we deem the possibility waived (more accurately, forfeited). Injury must be proved; "presumed" damages are not available in litigation under § 1983. See Memphis Community School District v. Stachura, 477...