Green v. Hous. Auth. of Milwaukee

• Decision Date: 23 August 2016
• Docket Number: No. 2015AP1247.,2015AP1247.
• Parties: Wendy GREEN, Plaintiff–Appellant, v. HOUSING AUTHORITY OF the CITY OF MILWAUKEE, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

371 Wis.2d 759

886 N.W.2d 592 (Table)

Wendy GREEN, Plaintiff–Appellant,

v.HOUSING AUTHORITY OF the CITY OF MILWAUKEE, Defendant–Respondent.

No. 2015AP1247.

Court of Appeals of Wisconsin.

Aug. 23, 2016.

¶ 1 BRENNAN, J.

Wendy Green was a tenant in the rent assistance program (the Program) subsidized by the federal government through Section 8. The Housing Authority of the City of Milwaukee (HACM) administers the Section 8 program in Milwaukee. Green appeals the HACM decision terminating her from the Program due to non-compliance with the terms of her rent repayment agreement and the circuit court's denial of her writ of certiorari challenging the HACM decision.¹

¶ 2 Green admits that she signed a repayment agreement with HACM after it concluded that she let her son reside in her unit without reporting his income and had allowed him to continue to use her address after he moved out and had failed to report his income. And she admits that the agreement clearly advised her that she would be terminated for failure to pay according to the terms of the agreement. She also admits she failed to make the required payments. Nonetheless, she contends that she should not be terminated because of one sentence in the agreement that violates her constitutional substantive and procedural due process rights.

¶ 3 Additionally, she contends that the repayment plan violates the federal Section 8 lump sum payment statutes and rules. Finally, she claims that HACM's decision was arbitrary and capricious and that she was not given adequate notice that her behavior at the hearing at which she signed the repayment agreement would be considered at the appeal before the examiner.

¶ 4 HACM counters that the one sentence on which this appeal is principally based did not violate Green's substantive and procedural due process rights, that the lump sum amount complied with the federal rules, and that the HACM decision was not arbitrary and capricious and was based on proper notice. The circuit court agreed with HACM and denied the writ of certiorari, along with Green's second claim for injunctive and declaratory relief under 42 U.S.C. § 1983.²

¶ 5 We agree with the circuit court and with its reasoning and affirm on all issues in this appeal.

BACKGROUND

The first hearing—August 29, 2012

¶ 6 On February 27, 2012, HACM questioned Green's continued eligibility for rent assistance program benefits, alleging that she did not disclose that her son, Christopher Green (Mr. Green), was living with her in her rent-assisted home as an unauthorized household member and that he earned income that was not reported. An informal hearing was held on August 29, 2012.

¶ 7 On November 7, 2012, HACM's hearing officer issued a decision concluding that:

Preponderance of the evidence standard was applied, HACM proved with all the evidence submitted that Mr. Green did reside in the contracted unit and his income was not reported.

The program is owed $2,886.90 which Mr. Christopher Green, son of participant has agreed to pay.

Further, the decision found that the testimony showed Green moved her son out of the household³ when his income went up, allowed him to continue to use the residence as his address, and failed to report his income:

Ms. Green violated the above mentioned regulations because she moved out (sic) her son out of the household when his income went up, never moved him back into the household, allowed him to continue using the contracted unit's address as his mailing address and at the end Mr. Green agreed that he did owe the money and was willing to repay the program.

¶ 8 Notwithstanding the violation, the hearing officer decided to allow Green to continue her eligibility in the Program. The decision directed HACM to draw up a repayment agreement with Green. Green did not appeal the decision.

The repayment agreement

¶ 9 Following the November 7, 2012 decision, "Green was to contact the Program by November 14, 2012, to sign a repayment [agreement]." Green contacted the Program and updated her monthly adjusted income to $250.

¶ 10 On February 11, 2013, Green attended the repayment agreement meeting with HACM employee, Ms. Loberg. Green stated at her December 19, 2014 deposition that she understood at that February 11, 2013 meeting that she violated Program rules, owed money, and was being given a second chance to remain in the Program. Green admitted she had no obligation to sign the repayment agreement and was free to leave the Program if she chose to reject the agreement. But she acknowledged that she did sign the agreement. The agreement required a lump sum payment in the amount of $1086.90 by April 5, 2013, and eighteen monthly payments of $100 beginning May 31, 2013.

The under-reporting clause

¶ 11 At the February 11, 2013 meeting, Green initially objected to signing the form because of the sentence that stated, "Under-reporting of my household income was a knowing, voluntary act by me intended to deceive the Program and reduce my rent obligation." She requested six months rather than sixty days to pay the lump sum and was told that HACM policy permitted no more than sixty days. HACM staff reported that "Green was extremely aggressive, she altered the repayment agreement, and threw her pen multiple times. Staff reprinted another agreement and told her she could not alter the Program document." Eventually she signed the unaltered, reprinted agreement and acknowledged that HACM staff did not force her to sign the agreement.

¶ 12 The repayment agreement form Green signed is the only form used by HACM in administering repayment agreements. In deposition testimony, HACM employee Debra LaRosa explained that the reason for including the "knowing, voluntary act intended to deceive" language on the form was that without it, clients would sign and then file bankruptcy discharging their rent repayment obligation. It became the standard language, she testified, because "[i]t didn't make sense for us to sign a Repayment Agreement with someone and then never get a penny of it."

Default and termination

¶ 13 By April 5, 2013, Green paid $600 of the $1086.90 due that date. On April 10, 2013, HACM sent Green a second notice, this time questioning her continued eligibility based on her failure to make the $1086.90 payment due April 5, 2013, as required by the agreement. That day she paid an additional $100, bringing her total payment toward the lump sum amount to $700. After receiving the termination notice, Green requested a hearing.

¶ 14 On August 7, 2013, a hearing was held. At the hearing Green acknowledged that she did not pay the required amount by the date due on the repayment agreement. She brought a $500 check to the hearing to submit a payment, but the hearing officer did not accept the payment on the grounds that after April 5, 2013, she was in default, and further payment could not be accepted until after a decision concerning termination was made.

¶ 15 On August 26, 2013, the hearing examiner issued a written decision concluding that Green had violated Program rules, federal regulations, and the repayment agreement. In the written decision, the hearing officer stated:

Ms. Wendy Green did not present any mitigating circumstances documents as to why she had not met the terms of her re-payment agreement.

....

Preponderance of the evidence standard was applied, Ms. Green has only repaid the program $700.00 out of the full amount of $2,886 .90 she owes the program due to unreported income.

The Program met the burden by showing that: Ms. Green was not serious about re-paying the program money owed as a result of not reporting household income. Ms. Wendy Green still owes the program $2,186.90.

Participant did not rebut and was unable to provide evidence to overturn the program's decision.

(Emphasis omitted). The hearing examiner concluded that the Program could "proceed to terminate participant" and stated it was basing its decision "on the informal hearing held on August 7, 2013; documentation submitted by PHA staff; and testimony of participating family[.]"

Proceedings in the circuit court

¶ 16 On September 25, 2013, Green filed a complaint in the circuit court alleging two causes of action. She sought certiorari review of the administrative decision terminating her rent assistance and declaratory and injunctive relief under 42 U.S.C. § 1983. The circuit court bifurcated the claims and they proceeded independently.

¶ 17 In an order dated April 25, 2014, the circuit court affirmed on certiorari review HACM's decision to terminate Green from the Program. Following discovery on the § 1983claim, both parties moved for summary judgment. On March 9, 2015, the circuit court heard arguments on the cross-motions for summary judgment and in a written order dated March 24, 2015, stated that "all remaining claims and causes of action against the Housing Authority of the City of Milwaukee are dismissed upon the merits...." At the March 9, 2015 hearing, the circuit court invited Green to file a motion to reconsider the severability ruling. Green did so, and on June 9, 2015, the circuit court denied the motion, abiding by its earlier ruling that the contract language at issue does not violate the Due Process Clause and that even if it does, it can be severed without effect on the agreement's enforceability because the language is not integral to the agreement. The written order denying reconsideration for the reasons stated at the hearing was filed June 16, 2015. This appeal follows.

DISCUSSION

¶ 18 This is an appeal of a denial of a writ of certiorari at the summary judgment stage.⁴ There are basically three issues presented, each with subparts. First, the appellant contends that one sentence in the repayment agreement offends both substantive and procedural due process. Second, appellant argues that the initial lump sum payment required in the repayment agreement violates federal statutes and rules. Third, appellant argues that the examiner's decision was arbitrary and capricious, and the hearing was...