Atkisson v. Kern County Housing Authority

• Decision Date: 15 June 1976
• Citation: 59 Cal.App.3d 89,130 Cal.Rptr. 375
• Parties: Joyce Boykin ATKISSON for herself and all others similarly situated, Plaintiff and Appellant, v. KERN COUNTY HOUSING AUTHORITY, a body politic, et al., Defendants and Respondents. Civ. 2546.
• Court: California Court of Appeals Court of Appeals

Page 375

130 Cal.Rptr. 375

59 Cal.App.3d 89

Joyce Boykin ATKISSON for herself and all others similarly situated, Plaintiff and Appellant, v. KERN COUNTY HOUSING AUTHORITY, a body politic, et al., Defendants and Respondents.

Civ. 2546.

Court of Appeal, Fifth District, California.

June 15, 1976.

Thomas M. Sobel, Richard G. Fathy, Greater Bakersfield Legal Assistance, Inc., Bakersfield, for plaintiff and appellant

Harvey H. Means, Mack, Bianco, Means, Mack & Stuart, Bakersfield, for defendants and respondents.

OPINION

ZEFF, Associate Justice. ^*

This action was brought by the appellant on behalf of herself and all others similarly situated for declaratory and injunctive relief against the respondents.

On May 4, 1973, appellant filed a complaint for declaratory and injunctive relief challenging the validity of respondents' policy of excluding from its housing projects families whose heads of household are not related by blood, marriage or adoption This case was tried on a stipulation of facts which we summarize in part.

Appellant is a 33-year-old divorcee who, since November 9, 1971, has resided with her six children in a low income public housing unit in Bakersfield operated by the respondents. Under the terms of section 2 of the lease agreement, the lease is 'subject to the . . . eligibility requirements . . . and the regulations of the Authority in the exercise of its lawfully constituted powers and duties. . . .'

In section 3 of lease provides:

'Use and occupancy of the dwelling is restricted to the specific persons listed on the application for the dwelling.'

Since July, 1972, an adult male, unrelated to appellant by blood, marriage or adoption, has resided with appellant in a state of cohabitation as if husband and wife.

The respondent Housing Authority, in its statement of policies, section X.A forbids any and all low income public housing tenants from living with anyone of the opposite sex to whom the tenant is not related by blood, marriage, or adoption. This policy is based upon respondents' view that (a) such cohabitation is immoral; (b) that such cohabitation results in a continuous turnover of cohabitants which results in management problems such as computation of rents; (c) respondents' view that its 31 years of experience makes clear that (1) a cohabitant tenant is or becomes less responsible to respondents, and (2) is a poor influence on the cohabitant tenants as families; and (d) respondents' view that unless cohabitation is prohibited, there will be (1) a demoralizing effect on tenancy relations, and (2) the number of cohabitants could not be controlled.

In July of 1972 respondents were notified by appellant's former husband that she was cohabiting with an unrelated adult male. The respondents then initiated efforts to evict appellant on the Sole basis that she was violating respondents' policy in section X.A against cohabitation. Here we deem it advisable to quote literally from the formal stipulation of facts:

'6. When the defendants were thus informed of the fact that the plaintiff was living with an adult male to whom she was not related by blood, marriage or adoption, they initiated efforts in August 1972, to evict the plaintiff Solely because of her violation of the defendants' policy prohibiting any and all such cohabitation, as set forth in Section X.A of the defendant Housing Authority's Statement of Policies.

'* * *n o

'8. But for Stipulation No. 11 below, defendants have been, are now and will continue to evict any and all low income, public housing tenants within the defendants' control Solely because such tenants are found to be cohabiting with adults to whom they are not related by blood, marriage of adoption.

'* * *e n

'10. The plaintiffs represents the class of all present and future low income families who would be eligible for occupancy but for the fact that the head of household is cohabiting with someone to whom he/she is not married. Questions of law and fact common to the entire class are presented by defendants' proposed eviction of plaintiff for living with a man not her spouse. The class is so numerous that joinder of all members is impracticable. The claim of plaintiff is typical of her class and she will adequately and fairly represent the class.

'11. The defendants agree not to cause the eviction by way of informal or formal procedures, through themselves or any of their agents, of any low income tenants because he or she is cohabiting with someone not his/her spouse until final judicial dispensation (sic) of this issue is reached in this case.' (Emphasis added.)

A grievance hearing was held at which respondents objected to appellant's continued residence in the housing unit on the sole ground as indicated. No other tenants objected at the hearing to appellant's cohabitation. The hearing officer found that appellant was in violation of section X.A and further found that because of such violation appellant was also in violation of sections 2 and 3 of the lease agreement.

The respondents have conceded throughout that there is an actual controversy, and that the petition as filed by appellant was properly presented as an action for declaratory relief and injunction and that it included all of the essential elements appropriate to such a proceeding. Despite the stipulation that the matter was presented on the basis of a stipulation of facts, the only issue being whether appellant could be evicted solely because of her violation of the respondents' policy prohibiting cohabitation as set forth in section X.A of the Housing Authority's Statement to Policies, and although all parties in interest were seeking a determination of the broad constitutional questions challenging the validity of the respondents' policy regulation, the trial court failed to address itself to the issues so presented and elected instead to view the case as an administrative mandamus proceeding. The trial court applied the guidelines of Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29 and determined that the case involved a 'privilege' and not a 'fundamental vested right', and considered only the question of whether the hearing officer's recommendation was supported by substantial evidence, and refused to deal with appellant's challenges to the legality of the policy of respondents on the basis of constitutional invalidity.

Rather than treating the case as unadjudicated and remanding the matter for consideration and determination by the trial court, in the interest of judicial economy, we elect to review the case and to decide the constitutional questions presented.

While stated somewhat differently in appellant's brief on appeal we discern her position to be that the X.A policy of respondents violates HUD regulations and in doing so, denies to the appellant the equal protection of law, due process, invades the right of privacy without a compelling state interest and violates a tenant's civil rights as protected by state law.

At the outset we hold that the rule of Strumsky v. San Diego County Employees Retirement Assn., supra, has no application to the case at bench. This was an action for declaratory and injunctive relief and not, as construed by the trial court, an administrative mandamus proceeding involving a conflict of facts. Unlike the posture in which Strumsky was presented where the court was concerned with a review of the evidence to determine whether there was an abuse of discretion by an administrative agency in that its findings were not supported by substantial evidence; here there are no contested issues of fact. The only issues here are questions of law, and since this case was submitted on a stipulation of facts which completely established the factual premise, the rule of the Strumsky case is irrelevant.

In a circular dated December 17, 1968, the Assistant Secretary for Renewal and Housing Assistance, HUD, a Mr. Don Hummel, set forth 'Standards for Establishment and Administration of Admission and Occupancy Regulations'. The Circular states that one of its purposes is 'to set forth minimum admission and continued occupancy standards to be followed by Local Authorities. . . .' As two of its standards, the circular lists the following:

'b. A Local Authority shall not establish policies which Automatically deny admission or continued occupancy to a Particular class, such as unmarried mothers, families having one or more children born out of wedlock, families having police records or poor rent-paying habits, etc.

'c. To determine whether applicants or occupants should be admitted to or remain in its project, a Local Authority may establish criteria and standards bearing on whether the conduct of such tenants (in an applicant's present or prior housing, or in occupancy in the case of present tenants) does or would be likely to interfere with other tenants in such a manner as to materially diminish their enjoyment of the premises. Such interference must relate to the actual or threatened conduct of the tenant and not be based Solely on such matters as the Marital status of the family, the legitimacy of the children in the family, police records, etc.' (Emphasis added.)

The suspect policy of respondent X.A has been set out Supra. It is clear that a circular such as that under consideration here as issued by the Assistant Secretary for Renewal and Housing Assistance, HUD, is binding upon local housing authorities when the circular has been written in mandatory language as is the case here. (Thorpe v. Housing Authority of City of Durham (1969) 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474.) Moreover, the circular in this case expressly states that 'it will be incorporated in the low-rent manual' which manual sets forth minimum admission and continued occupancy standards to be followed by local authorities. (Id. at p. 275, 89 S.Ct. 518.)

We conclude that section X.A as adopted by respondents violates HUD...