Henry Knox Sherrill Corp. v. Randall

• Decision Date: 11 October 1975
• Docket Number: No. CV,No. 6,CV,6
• Citation: 358 A.2d 154,33 Conn.Supp. 15
• Court: Connecticut Court of Common Pleas
• Parties: The HENRY KNOX SHERRILL CORPORATION v. Edward RANDALL et al. 6-7508-68098

Page 154

358 A.2d 154

33 Conn.Supp. 15

The HENRY KNOX SHERRILL CORPORATION v. Edward RANDALL et al.

No. CV 6-7508-68098.

Court of Common Pleas of Connecticut, Geographical Area No. 6.

Oct. 11, 1975.

Herbert G. Hyman, New Haven, for plaintiff.

Denise R. Johnson, New Haven, for defendants.

JACOBS, Judge.

This is a summary process action in which the plaintiff seeks to recover possession of the premises of occupied by the defendant on the ground of nonpayment of rent. The defendant was served with a notice to quit on July 18 , 1975, and this action was commenced by a writ issued on July 28, 1975. The defendant entered a special appearance and filed a plea in abatement, which alleges that this court is without jurisdiction because the plaintiff did not constitutionally terminate the defendant's tenancy prior to commencing this action, as required by General Statutes § 52-532. The defendant argues that because the plaintiff receives financial assistance from, and submits to regulation by, federal, state and local governments, it is subject to due process requirements which mandate administrative notice and hearing before termination of the defendant's tenancy. Since that alleged jurisdictional defect does not appear on the face of the record, a plea in abatement is proper. Practice Book § 93.

An initial question, therefore, is whether the plaintiff's seeking to evict the defendant is 'state action' such that the strictures of the due process clause of the fifth and fourteenth amendments of the federal constitution are applicable. Those constitutional restrictions apply where a state has 'insinuated itself into a position of interdependence' with an otherwise 'private project.' Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45. In McQueen v. Druker, 438 F.2d 781 (1st Cir.), the court, considering a housing development similar to that under consideration here, said: '(W)hen a specific governmental function is carried out by heavily subsidized private firms or individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that generally accorded an independent contractor, the coloration of state action fairly attaches.' Id., 784-85.

Here, the plaintiff has alleged, and the defendant has admitted, that the premises sought to be recovered are part of a low-income housing unit financed under section 221(d)(3) of the National Housing Act, 12 U.S.C. § 1715l(d)(3). Under the terms of that act, the federal housing administration provides mortgage insurance which enables developers to secure lower interest rates. The secretary of the department of housing and urban development exercises broad supervisory control over the operation of those developments. 12 U.S.C. § 1715l(d)(3). Moreover, authority to regulate a rent subsidy program is delegated to local housing authorities, which are corporations established pursuant to state statutes. See General Statutes section 8-40. The plaintiff receives subsidies in the form of tax abatements. General Statutes §§ 8-215, 8-216; New Haven Code § 28-4 (1962).

Thus, there is a panoply of governmental assistance and regulation which is more than sufficient to find that the activities of the plaintiff are state action for the purposes of applying the fifth and fourteenth amendments of the federal constitution. That finding is in accord with the decision of the majority of courts which have considered the question. See, e.g., Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937 (2d Cir.); Joy v. Daniels, 479 F.2d 1236 (4th Cir.); McQueen v. Druker, supra, and note, 'Procedural Due Process in Government-Subsidized Housing,' 86 Harv.L.Rev. 880, 893, 895-96.

The more difficult question in this case, to which there is no 'short answer,' is whether due process requires some form of adminstrative notice and hearing prior to the initiation of a summary process action. Cf. Owens v. Housing Authority of Stamford, 394 F.Supp. 1267, 1273 (D.Conn.). The seminal case in this area is, of course, Goldberg v. Kelly, 397 U.S 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. The United States Supreme Court in Goldberg ruled that welfare recipients were protected by procedural due process against termination of their benefits without a prior hearing. Applying a balancing test, the court reasoned that the need of a destitute welfare recipient for continuing support while a dispute over eligibility was being resolved was greater than the government's interest in summary termination.

It is clear that similar considerations are applicable in this case. the goal of the National Housing Act is to provide 'a decent home and a suitable living environment.' 42 U.S.C. §§ 1441, 1441a. The very purpose of the housing program requires a recognition of an interest on the part of the tenants in continuing their tenancy. A tenant, once evicted, faces almost insurmountable difficulty in obtaining decent housing at an affordable rate. see Caramico v. Secretary of the Department of Housing & Urban Development, 509 F.2d 694 (2d Cir.). The deprivation, as in Goldberg, is a complete termination of a governmental benefit. Moreover, as the court stated in McQueen v. Druker, 317 F.Supp. 1122, 1128-31 (D.Mass.), aff'd on other grounds, 438 F.2d 781 (1st Cir.), arbitrary evictions could create an atmosphere of hostility and alienation which would not contribute to the stability and security which is part of the objective of such housing programs.

This court notes that administrative hearings have been ordered in many instances involving termination of a lease due to lapse of time or for no stated casue. See Lopez v. Henry Phipps Plaza South, Inc., supra; Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir.); and Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91. Also, after much litigation, regulations have been issued by the department of housing and urban development which requires such hearings in public housing case. U.S. Dep't of Housing & Urban Development, Grievance Procedure in Low Rent Public Housing Projects, HUD Circular RHM 7465.9 (Feb. 22, 1971). The significance of all those cases is that administrative proceedings were required because state summary process actions did not provide for consideration of issues collateral to the mere fact of termination. On the other hand, the court in Joy v. Daniels, supra, held that no separate administrative hearing was necessary because South Carolina eviction procedure required the landlord to allege 'good cause,' and porve his allegation in a full plenary proceeding, in which the defendant was entitled to trial by jury.

Connecticut is one of the jurisdictions which allows a tenancy to be terminated by notice which does not have to allege 'good cause.' General Statutes § 52-532. Whether an administrative hearing would be necessary in a case in which no good cause for termination was alleged, however, is not a question before this court. In an action based on nonpayment of rent, the landlord must allege that such rent is due and owing and that the tenancy has been terminated by appropriate notice. General Statutes § 47-23. Various denfeses are available to the tenant; for example, that delay in paying rent is the fault of the landlord, Paranto v. Ball, 132 Conn. 568, 46 A.2d 6; that because of the summary nature of the action, the statute granting the remedy is strictly construed and all technical requirements must be fulfilled, Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 96 A.2d 217; waiver and novation, Sun Oil Co. v. Keane, 2 Conn.Cir. 524, 203 A.2d 88; illegality of the contract due to violations of the city housing code, Todd v. May, 6 Conn.Cir. 731, 316 A.2d 793; breach of warranty of...