Driver v. Housing Authority of Racine County

• Decision Date: 08 February 2006
• Docket Number: No. 2005AP411.,No. 2005AP410.,2005AP410.,2005AP411.
• Citation: 713 N.W.2d 670,2006 WI App 42
• Parties: Andrea DRIVER, Plaintiff-Appellant, v. HOUSING AUTHORITY OF RACINE COUNTY, Defendant-Respondent. Dorothy Bizzle, Plaintiff-Appellant, v. Housing Authority of Racine County, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

713 N.W.2d 670

2006 WI App 42

Andrea DRIVER, Plaintiff-Appellant, v. HOUSING AUTHORITY OF RACINE COUNTY, Defendant-Respondent.

Dorothy Bizzle, Plaintiff-Appellant, v. Housing Authority of Racine County, Defendant-Respondent.

No. 2005AP410.

No. 2005AP411.

Court of Appeals of Wisconsin.

Oral Argument January 4, 2006.

Opinion Filed February 8, 2006.

COPYRIGHT MATERIAL OMITTED

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gai

A. Lorenzen and Jeffery R. Meyer of Legal Action of Wisconsin, Inc., of Racine, and Melissa A. Frost of Leece & Phillips, S.C. of Elkhorn. There was oral argument by Jeffery R. Meyer.

On behalf of the defendant-respondent, the cause was submitted on the briefs of Jan M. Schroeder and Ahndrea R. Van Den Elzen of Peterson, Johnson & Murray, S.C. of Milwaukee. There was oral argument by Jan M. Schroeder.

Before SNYDER, P.J., BROWN and ANDERSON, JJ.

¶ 1 BROWN, J

The plaintiffs appeal the circuit court's dismissal of their 42 U.S.C. § 1983 (2005)¹ actions against the Housing Authority of Racine County (HARC). HARC sent both plaintiffs a notice stating it would terminate their section 8² housing assistance benefits because they had violated a "family obligation." Each party requested and received an informal hearing, after which HARC issued a written decision terminating the party's assistance for violating a "tenant responsibility." The circuit court granted summary judgment for HARC on the ground that both plaintiffs had actual knowledge of the charges against them. We reverse. Both the initial notices and the ultimate decisions, essentially form letters, fell woefully short of the level of specificity that due process requires. Nowhere did these documents specify who had violated what specific obligation and when the violation occurred, and neither gave even a rudimentary description of the incidents giving rise to the charges. "Actual notice" will not suffice. Federal regulations mandate written notice, and strict compliance is imperative as a matter of law and public policy. By reading an "actual notice" exception into the regulatory scheme, we would invite housing authorities to dispense with proper notice whenever they determined for themselves that the tenant "must have known" the basis for the allegations against them. Tenants would have no recourse unless they could prove, based on a record that may be sparse or nonexistent, that they did not actually have such notice. Fundamental fairness does not countenance such a result.

Driver's Case

¶ 2 In August 2003, the police arrested Andrea Driver for some robberies that she had allegedly committed with her friend, Shauna Stilo. Becky Getman, a HARC employee, sent Driver a letter while she was in jail advising Driver that she had some information on her housing status. Getman had apparently received a telephone call informing her that Stilo was living at Driver's address. Driver called Getman when she got out of jail and arranged to meet with her. At the meeting, Getman asked for copies of the police records relating to the charges. She warned Driver that engaging in violent criminal activity constituted a violation of Driver's family obligations and could result in termination of her section 8 housing assistance.

¶ 3 On February 27, 2004, Driver received a letter that stated in pertinent part, "Your eligibility to participate in the Section 8 Rental Assistance Program will terminate ... for the following reason(s): You violated your family obligation under the Section 8 Rental Assistance Program." Driver called Getman to inquire why she was being terminated. Getman informed her the reason was violating her family obligations, by which she meant that Driver had another individual living with her. Driver requested an informal hearing in writing, stating "I writing [sic] to request an informal hearing in regards to my being terminated due to family obligations[.] Shauna Stilo does and has not lived with me[.] I can prove it with documents. If she used my address it was not of my knowledge." A hearing was granted and took place on March 9.

¶ 4 Although we have a minimal record before us, the parties appear to agree that the following occurred at the hearing. First, Getman announced that the reason for the hearing was that Stilo was staying at Driver's address in violation of Driver's family obligations. The exhibits included Driver's housing voucher, which set forth the family obligations, several documents Driver signed that reiterate those obligations, and the police reports relating to the robbery. The reports Getman brought listed Stilo's address as Driver's residence. Driver brought other police reports, some of which indicated a different address for Stilo. Driver also called her aunt to testify that Stilo did not live with her. In addition, Stilo's Wisconsin ID card was marked as an exhibit.

¶ 5 Following the hearing, Driver received the results of the informal hearing in a letter reading in relevant part, "[HARC] has concluded its review[] of the information you provided and ha[s] found no extenuating circumstances to explain why you were unable to comply with your tenant responsibilities as a recipient of the Section 8 Program.... It is the finding of the Authority that you violated your tenant responsibility and ... your assistance is being terminated." Driver asked HARC to reconsider, stating that she had additional proof that Stilo did not live with her. HARC denied the request, and she brought a 42 U.S.C. § 1983 claim in the circuit court.

¶ 6 Both parties moved for summary judgment. At the motion hearing, Driver's counsel conceded that actual or oral notice of HARC's grounds for termination sufficed and that Driver had such notice. Specifically, she knew that the termination had to do with Stilo living at her address without HARC's authorization. The court granted HARC's motion and dismissed Driver's case. The court noted Driver's actual knowledge of the issues and that she had an opportunity to prepare for the hearing. It also stated that Driver's letter to HARC asking for a new hearing demonstrated that she knew the reason for the ultimate decision.

Bizzle's Case

¶ 7 On March 7, 2004, Dorothy Bizzle's three sons, Sam, Richard, and Corey became involved in a dispute. Corey and Richard went outside, where Corey cut Richard with a knife, and the police got involved. Both Richard and Corey were arrested. On April 8, Bizzle received a form letter substantively identical to the one Driver received, stating, "[y]ou violated your family obligation under the Section 8 Rental Assistance Program," and informing Bizzle that her assistance would terminate. Bizzle called Getman, her caseworker, from an agency called Fair Housing to ask about the termination letter.

¶ 8 Getman's affidavit states that she informed Bizzle of the reason for the termination, namely, that she had violated her family obligation by allowing Corey to live with her and/or use her address. Only Sam was authorized to live with Bizzle. Getman states she advised Bizzle that she had verification of the violation in the form of a Department of Corrections (DOC) report and a police report. The Getman affidavit also reveals that HARC concluded from the police reports that Richard was living with Dorothy, which, if true, would constitute an independent violation of the "unauthorized persons" violation. Getman further attests that she issued the termination for a third "family obligation" violation, namely, violent criminal activity on or near her unit. Bizzle sent Getman a letter requesting a hearing and a date for a past-due housing inspection.

¶ 9 The record reveals that at the hearing, Bizzle presented no evidence on her own behalf. Getman read from the police reports and the DOC report and presented them to the hearing officer. The police reports revealed the knife fight between Richard and Corey and that both listed Bizzle's address as their own. The DOC report recorded a home visit Corey's probation officer had made to Bizzle's address, in which Corey told the officer he had just gotten home from work and had nothing new to report. Another DOC document stated that Corey had reported Bizzle's address as his home address since 2003. Getman also introduced several papers Bizzle had signed in which she agreed to observe certain family obligations. Bizzle admitted at the hearing that her children use her address when they go to jail but denied everything else.

¶ 10 After the hearing, Bizzle received a form letter substantively identical to the decision letter Driver received: "[HARC] has concluded its review and ha[s] found no extenuating circumstances to explain why you were unable to comply with your tenant responsibilities as a recipient of the Section 8 Program. It is the finding of the Authority that you violated your tenant responsibility and ... your assistance is being terminated."

¶ 11 As in the Driver case, Bizzle brought a 42 U.S.C. § 1983 claim that resulted in cross-motions for summary judgment. Like Driver, Bizzle conceded at the motion hearing that she had actual notice and that such notice was adequate. She had admitted in her deposition that she knew the termination was related to Corey living at or using her address and to the fight her sons engaged in. The court granted HARC's motion based on Bizzle's actual knowledge of the pertinent claims and issues and Bizzle's own statements.

Standard of Review

¶ 12 Both tenants appeal, contending that HARC failed to follow the proper procedural mechanisms called for by due process and the federal regulatory scheme. Because this case comes to us on summary judgment, our review is de novo, and we apply the same methodology as the circuit court. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well known, and we need not repeat it here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241...