Housing Authority of City of Milwaukee v. Mosby

• Decision Date: 04 January 1972
• Docket Number: No. 162,162
• Citation: 53 Wis.2d 275,192 N.W.2d 913
• Parties: HOUSING AUTHORITY OF the CITY OF MILWAUKEE, Respondent, v. Harriett MOSBY, Appellant.
• Court: Wisconsin Supreme Court

Page 913

192 N.W.2d 913

53 Wis.2d 275

HOUSING AUTHORITY OF the CITY OF MILWAUKEE, Respondent, v. Harriett MOSBY, Appellant.

No. 162.

Supreme Court of Wisconsin.

Jan. 4, 1972.

Rehearing Denied Feb. 29, 1972.

The case involves the procedures necessary to evict a tenant from a public housing project financed in part by the federal government through the United States Department of Housing and Urban Development (HUD).

The appellant, Harriett Mosby, is a public housing tenant who lives with her two teen-aged children in the Westlawn Housing Project (housing project) in the city of Milwaukee. The housing project was built and is owned and operated by the Housing Authority of the City of Milwaukee (housing authority), which is a municipal corporation established under secs. 66.40 and 66.404, Stats., the Housing Authorities Law.

Briefly stated, the major purpose of the Housing Authorities Law is to authorize the expenditure of public funds so as to effectuate slum clearance and to provide safe and sanitary housing for persons of low income who find it difficult if not impossible to obtain adequate housing from private sources for rentals they are able to pay.

The Westlawn project is in part financed by the federal government through HUD, which from time to time issues administrative orders and directives describing rights and duties of the tenants and the housing authority as to rent, maintenance and manner of occupancy.

Harriett Mosby became a tenant in the housing project on July 1, 1967, and has continuously resided there until this date.

On June 16, 1969, Jerome Soref, the housing manager of the Westlawn housing project, inspected the unit which is rented to Harriett Mosby. His written report indicated her housekeeping was deficient in several respects as to cleanliness and maintenance. A second inspection was made on July 24, 1969, and a third on September 10, 1969. In both of these later instances the same or similar deficiencies were reported by Mr. Soref.

On September 10th, Mr. Soref had a conference with Harriett Mosby concerning her housekeeping. At that time he also personally served her with a thirty-day notice to terminate the tenancy on October 31, 1969.

Harriett Mosby did not vacate the premises and on November 10, 1969, the housing authority commenced an unlawful detainer action in the Small Claims Division of the County Court of Milwaukee county. Harriett Mosby defended the action and, among other defenses, claimed that she was entitled to an administrative hearing before the termination of the tenancy and none had been afforded her. The county court, through Judge John A. Fiorenza, ruled such an administrative hearing was not required and entered judgment for the housing authority.

Pursuant to statute, Harriett Mosby appealed to the Circuit Court for Milwaukee county. Circuit Judge Leander J. Foley, Jr., in a memorandum decision in response to pretrial motions, held that under the provisions of ch. 291, Stats., our unlawful detainer law, a full hearing with all the due process protections could be afforded to the tenant in the court proceeding and that under those circumstances a pre-eviction administrative hearing was not necessary. Judge Foley further concluded that Harriett Mosby should be given a trial de novo and that the issues would be (1) whether Harriett Mosby did fail to maintain her apartment in a reasonable and clean condition, and (2) whether the housing authority acted in an arbitrary and capricious manner.

On June 26, 1970, a trial of the matter was held. The court found, in effect, that Harriett Mosby's housekeeping was inadequate both as to cleanliness and maintenance and was in violation of the standards set by the housing authority and HUD, that these conditions were 'detrimental to the other tenants,' that the housing authority's actions in terminating the tenancy were neither arbitrary nor capricious, and that due process had been afforded to her.

Judgment for restitution of the premises was entered June 26, 1970.

Harriett Mosby appeals.

James A. Walrath, Milwaukee, for appellant Patricia McMahon of Freedom Through Equality, Milwaukee, of counsel.

John J. Fleming, City Atty., Michael J. McCabe, Asst. City Atty., Milwaukee, for respondent.

BEILFUSS, Justice.

The appellant, Harriett Mosby, has raised several issues in her brief filed in support of her appeal, namely: (1) the court applied the wrong standard, (2) the evidence is insufficient to support the findings, and (3) the tenant was denied due process because she was not given a pre-eviction administrative hearing. The appellant also asserts an additional issue has arisen after the appeal was taken because of a HUD administrative order dated February 22, 1971, which regulation provides for an administrative hearing. She claims the regulation must be applied retroactively.

Because we believe the questions of due process and the retroactivity of the February 22, 1971, regulation are controlling, we will only discuss briefly the first two issues.

The respondent housing authority, through the city attorney, concedes that a public housing tenant is entitled to a due process hearing as to the reasons for eviction in unlawful detainer proceedings consistent with governmental regulations concerning public housing. Our unlawful detainer statute, sec. 291.07, Stats.1967, provides in part:

'Proceedings and pleadings. After the return of the summons served as above provided, and at the time and place named therein, if the defendant appear he may answer the complaint; and all matters in excuse, justification or avoidance of the allegations of the complaint must be answered specifically; . . .'

This section, together with the rationale expressed in Dickhut v. Norton (1970), 45 Wis.2d 389, 173 N.W.2d 297, of allowing defenses based upon public policy, is broad enough to accommodate a defense based upon a federal public housing regulation.

The appellant Mosby contends the court did not apply the right standard to the conduct of Harriett Mosby in the de novo trial. The trial court's memorandum decision of May 22, 1970, did state the issues to be determined at the trial were (1) whether Harriett Mosby failed to maintain her apartment in a reasonable and clean condition, and (2) whether the housing authority acted in an arbitrary and capricious manner in terminating the tenancy.

Appellant contends that by virtue of a HUD circular dated December 17, 1968, the standard should have been '. . . whether the conduct of such tenants does or would be likely to interfere with other tenants in such a manner as to materially diminish their enjoyment of the premises.'

We think the record clearly reveals that the trial judge did apply the standard the appellant Mosby contends was required. In the findings of fact given after the trial, the trial judge stated: '. . . Now, the Court on those violations would have to find that these violations would constitute a failure to keep the standard of care set by the Housing Authority and that those violations were detrimental to other tenants. . . .'

The appellant Mosby also contends the evidence was insufficient to show conduct on her part in the cleanliness and maintenance of the apartment was detrimental to other tenants. The credibility of the witnesses and the weight of the testimony are for the trier of the facts and if there is any credible evidence to sustain the findings of fact we will not disturb them upon appeal.

We have reviewed the record. We do not intend to discuss the evidence nor the findings, except to state our conclusions that there is ample credible evidence to sustain the findings that the premises were not kept as clean as they reasonably should have been, nor were they maintained in such a condition as reasonably required by the rental agreement; that the authority did not act in an arbitrary or capricious manner; and that the conduct of the appellant Mosby in the care and maintenance of the apartment was detrimental to other tenants.

The appellant Mosby further contends she was denied due process of law because she was not afforded a pre-eviction administrative due-process-type hearing with notice, statement of charges and right to counsel. The trial judge, in an able and helpful memorandum decision, concluded that a public housing tenant was entitled to an adversary type of hearing with notice, reasons for eviction, and right to counsel, and that such a hearing could be afforded the appellant in the trial de novo which was granted to her.

Judge Foley concluded that under the HUD circular of February 7, 1967, the appellant was entitled to notice of the reasons for eviction and an opportunity to reply in private conference, and that this requirement was mandatory by virtue of a decision of the United States Supreme Court in Thorpe v. Housing Authority (1969), 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474. Judge Foley further concluded that the informal conference provided for in the HUD circular of February 7, 1967, did not meet the requirements of due process (see Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287), and for that reason conducted a trial de novo wherein the due process requirements of notice of reasons for eviction and adversary hearing were extended to the appellant. The housing authority, in addition to proving notice of termination, was required to show its reasons for eviction and the violations of the rental agreement; that she was given notice of reasons and an opportunity to discuss the matter with the housing manager and that his action was not arbitrary or capricious; and that the conduct of the appellant did have a detrimental effect upon other tenants in the housing project. The appellant, Harriett Mosby, was afforded due process.

If we were not required to consider the retroactive effect of another HUD circular issued February 25, 1971, we would affirm the judgment appealed from without hesitation. (The...