Bratcher v. Hous. Auth. Of The City Of Milwaukee

Decision Date08 June 2010
Docket NumberNo. 2009AP2204.,2009AP2204.
PartiesLeverna BRATCHER, Plaintiff-Respondent,v.HOUSING AUTHORITY OF the CITY OF MILWAUKEE, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher P. Riordan and Douglas M. Raines of von Briesen & Roper, S.C. of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of April A.G. Hartman of Legal Action of Wisconsin, Inc. of Milwaukee.

Before CURLEY, P.J., FINE and KESSLER, JJ.

KESSLER, J.

¶ 1 The Housing Authority of the City of Milwaukee appeals from an order granting certiorari to Leverna Bratcher and remanding her case to the Housing Authority for another hearing on her application for rent assistance.1 We affirm.

BACKGROUND

¶ 2 Bratcher applied for admission to the federally funded Rent Assistance Program administered by the Housing Authority. By a form letter dated August 23, 2007, the Housing Authority advised Bratcher that it was denying her admission into the program, stating:

At this time, program staff has decided to deny your admission based on the findings of your background check. The reason(s) for your denial is(are) listed below:
Specifically
1. You were arrested for Battery on 9/14/04 by the Milwaukee Police Department.
2. You were found guilty of Disorderly Conduct on 10/7/03 in Milwaukee Municipal Court, Case No. 03132433.

(Bold and underlining in original.) The notice told Bratcher that she could request an Informal Review, but that “program staff will not be able to discuss the details of your background check over the phone” and that [i]f you have any questions regarding this matter, please address them only during the time of your scheduled Informal Review.” (Bold and underlining in original.) In the same form letter, Bratcher was told that at the Informal Review she was “responsible for providing any documentation, witness(es) or evidence that may clarify or support [her] case” and that she had the right to be represented by legal counsel. The letter concluded by stating: “Your Informal Review is your only opportunity to dispute your denial.... Please do not contact staff to discuss your denial prior to your Review appointment.” (Underlining and bold in original.)

¶ 3 No documents pertaining to either the arrest (which did not lead to any charges) or the civil citation were attached to the notice. No summary of the facts underlying either the arrest or the civil citation was disclosed in the notice. The notice did not explain what rules, regulations or published standards of the rent assistance program were violated by the arrest and civil citation.

¶ 4 Bratcher requested the Informal Review. At that Informal Review, a person identified in the transcript only as “Rent Assistance” 2 stated that the arrest for battery was not prosecuted, then apparently read aloud and/or paraphrased the police report related to the arrest. “Rent Assistance” did the same with the civil citation for disorderly conduct. Although “Rent Assistance” presented the information in police reports, nothing suggests that s/he was a witness to the underlying events. No witnesses testified on behalf of the Housing Authority.

¶ 5 The battery arrest was related to an argument Bratcher had with her sister, Tosha Bratcher. Tosha appeared at the Informal Hearing and told the Hearing Officer that although she and Bratcher had had an argument, Bratcher had not struck her, hit her or [laid] a hand” on her.

¶ 6 With respect to the disorderly conduct citation, Bratcher expressed uncertainty as to what the four-year-old civil citation was about. She was eventually given a copy of the citation by “Rent Assistance.” The Hearing Officer then apparently read the citation to Bratcher to refresh Bratcher's recollection of the events.

¶ 7 After hearing the citation read aloud, Bratcher said that she now recalled the incident. She then explained her view of the events involved in the disorderly conduct citation:

I think I was coming from work and ... I saw how ... this young lady, she was 19 and my daughter at the time was 12 or 13. She had jumped on my daughter.
....
... [The nineteen-year-old woman] [h]ad jumped on my daughter [who] at the time was like 12 or 13.
And I was very upset and out of control. So that's why they issued me the ticket for disorderly conduct. So I admit it today. Am I always like that? No. However, she was just an adult and I did tell them I only plead[ed] guilty[3] to slamming my hands on her door which I did and talking loud. But I didn't threaten her. But I told her as an adult she should have come to an adult rather than lash out at a child.

¶ 8 The Hearing Officer issued a two-page written decision upholding the denial of Bratcher's rent assistance application. The decision stated that based on Tosha's testimony that Bratcher had not hit her, “this incident will not be considered.” However, the Hearing Officer concluded that [d]ue to the disorderly conduct incident, the denial shall be upheld.” With respect to that incident, the Hearing Officer stated:

[Bratcher] admitted she had been angry about her daughter being “jumped” on by [the nineteen-year-old neighbor] but did not make threats etc.
It is understandable that [Bratcher] was upset about her daughter; however, by the time she got home, the fight was over, the police were there and she could see her daughter was unhurt. While in the presence of police, applicant made threats, uttered profanities, banged on the door and caused a crowd to gather. The incident also happened near her residence and involved a neighbor. This is the type of behavior that the Rent Assistance Program tries to screen out.

(Emphasis added.)

¶ 9 Bratcher sought certiorari review in the circuit court, and she also asserted a claim under 42 U.S.C. § 1983 (2006). The circuit court considered Bratcher's request for certiorari review.4 IN A WRITTEN DECISion, the circuit court granted the writ of certiorari, concluding that the Housing Authority had failed to follow the applicable law because it did not provide Bratcher with adequate notice prior to the Informal Review hearing and because the explanation for upholding the denial of rent assistance offered in the Hearing Officer's written decision was deficient. The circuit court remanded the case to the Housing Authority “to hold an appropriate hearing” on Bratcher's application. The circuit court also defined the scope of the hearing:

The scope of the hearing should consist of giving [Bratcher] proper notice of the adverse information the government will rely on at the hearing so that she may be prepared to rebut that evidence and make an appropriate argument. At the conclusion of the hearing the Housing Authority should explain its decision as required by [ Billington v. Underwood, 613 F.2d 91 (5th Cir.1980) ]. As explained in [ Snajder v. State, 74 Wis.2d 303, 312-13, 246 N.W.2d 665 (1976),] at the new hearing the Housing Authority is not [ ] allowed to supplement the record with new evidence ... [as doing so] violates the concept of “fair play” and [s]uch a hearing is analogous to allowing a second trial to ‘shore up’ the record to support the judgment.” Id. at 313 . Therefore, [Bratcher] will be allowed to introduce additional evidence after having received an appropriate notice which will allow her notice of the Housing Authority's adverse information and be prepared to rebut that information. She did not have that opportunity at the first hearing because the notice was not adequate.
Having concluded that a new hearing was necessary due to deficiencies in the notice and decision, the circuit court did not decide whether the Housing Authority's decision was supported by substantial evidence. This appeal follows.

DISCUSSION

¶ 10 “When we review an application for a writ of certiorari, we review the agency's decision, not the decision of the circuit court.” Williams v. Housing Authority of the City of Milwaukee, 2010 WI App 14, ¶ 9, 323 Wis.2d 179, 779 N.W.2d 185 (Ct.App.2009).

On certiorari review we, like the circuit court, are limited to determining: (1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether the action was arbitrary, oppressive, or unreasonable and represented the agency's will and not its judgment; and (4) whether the evidence was such that the agency might reasonably make the order or determination in question.

Williams v. Integrated Cmty. Servs., Inc., 2007 WI App 159, ¶ 11, 303 Wis.2d 697, 736 N.W.2d 226.

¶ 11 We conclude that the Housing Authority failed to act according to law because both the written notice and the written decision failed to give Bratcher an adequate explanation of the reasons her rent assistance was being denied. See State ex rel. Lomax v. Leik, 154 Wis.2d 735, 740, 454 N.W.2d 18 (Ct.App.1990) (“When used in conjunction with certiorari review, the phrase ‘acted according to law’ includes the common-law concepts of due process and fair play.... [A] hearing [must provide] ... minimal due process or fair play standards.”). Therefore, we affirm the granting of the writ of certiorari. Further, for reasons discussed below, we affirm the circuit court's choice of remedy for these deficiencies.

I. Adequacy of the written notice and the written decision.

¶ 12 We begin with the federal regulations that govern the federally funded rent assistance program for which Bratcher applied. The applicable regulations provide that when an applicant is denied rent assistance by a participating housing authority (PHA), written notice of the denial is required. See 24 C.F.R. § 982.554(a) (2007).5 Section 982.554(a) provides:

Notice to applicant. The PHA must give an applicant for participation prompt notice of a decision denying assistance to the applicant. The notice must contain a brief statement of the reasons for the PHA decision. The notice
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