Landers v. Chicago Hous. Auth., 1-09-1717.

• Decision Date: 20 September 2010
• Docket Number: No. 1-09-1717.,1-09-1717.
• Parties: Keith LANDERS, Petitioner-Appellee, v. CHICAGO HOUSING AUTHORITY, a Municipal Corporation, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

936 N.E.2d 735

404 Ill.App.3d 568

344 Ill.Dec. 206

Keith LANDERS, Petitioner-Appellee,

v.CHICAGO HOUSING AUTHORITY, a Municipal Corporation, Respondent-Appellant.

No. 1-09-1717.

Appellate Court of Illinois, First District, First Division.

Sept. 20, 2010.

Chicago Housing Authority, Chicago (Pamela Cotten, Thomas King, of counsel), for Appellant.

Legal Assistance Foundation of Metropolitan Chicago, Chicago (Richard M. Wheelock, of counsel), for Appellee.

Justice LAMPKIN delivered the opinion of the court:

[344 Ill.Dec. 207, 404 Ill.App.3d 569]

Respondent, Chicago Housing Authority (CHA), a municipal corporation, appeals the circuit court's judgment in favor of petitioner, Keith Landers, on his petition for certiorari, thereby reversing the CHA's denial of petitioner's application for public housing. The CHA contends the circuit court erred in its decision. Based on the following, we affirm.

FACTS

In February 1995, petitioner filed an application with the CHA for public housing. Petitioner was placed on a wait list. In November 2008, petitioner was notified that he had reached the top of the wait list and was eligible for housing assuming he passed various background checks. The CHA used the private firm Screening Reports, Inc., to conduct a criminal background check. The criminal background report revealed that petitioner had been arrested 34 times for various felony and misdemeanor charges. As a result, the CHA rejected petitioner's application for housing, citing a pattern of arrest and/or conviction for certain criminal activities. In response, petitioner requested that the CHA hold an informal hearing pursuant to the CHA's administrative hearing process so that he could provide documentation to dispute the accuracy of the criminal background report. See 24 C.F.R. §§ 960.204(c), 960.208(a) (2008); 42 U.S.C. § 1437d(q)(2) (2006).

A hearing was held on February 25, 2009. According to the parties'stipulated statement of facts,¹ petitioner produced a fingerprint-based criminal history report from the Chicago police department (CPD) and a revised report from Screening Reports, Inc. The revised report from Screening Reports, Inc., showed that petitioner had been arrested for four felony offenses and nine misdemeanor offenses, as well as for four civil ordinance violations

[344 Ill.Dec. 208, 936 N.E.2d 737]

The offenses included misdemeanor battery, misdemeanor assault, misdemeanor theft, criminal trespass, being a fugitive from justice, possession of a controlled substance, possession of drug paraphernalia, and drinking on a public way. All of the charges, however, had been dismissed except for one civil offense for drinking on a public way. The CPD report showed that petitioner had no prior convictions.

According to the parties' stipulation, petitioner testified at the mitigation hearing that the original criminal background report was inaccurate because it contained a high volume of arrests attributable to his twin brother. When asked by CHA representatives whether he committed the criminal offenses listed in the revised report, petitioner maintained that he did not commit the acts for which he was arrested. Petitioner testified that the police frequently questioned and arrested him merely because he was homeless and often gathered him in with other homeless individuals being questioned and arrested by the police. Petitioner testified that nearly all of the charges listed in his revised background report were dismissed at the initial court hearing because they lacked merit.

On March 2, 2009, the CHA sent petitioner a letter of denial. The letter stated that "[b]ased on the information and documents that [petitioner] provided, and the additional research, the CHA has determined and can document a pattern of arrest and/or conviction for certain criminal activities." The letter further informed petitioner that his name had been removed from the CHA's wait list.

On March 23, 2009, petitioner filed a petition for certiorari in the circuit court requesting reversal of the CHA's decision.² In response, the CHA filed a section 2-619 ( 735 ILCS 5/2-619 (West 2008)) motion to dismiss, arguing that petitioner's arrest record provided sufficient support for the CHA's decision.

On June 5, 2009, the circuit court conducted a hearing. At the outset, the circuit court denied the CHA's motion to dismiss andproceeded to consider the petition for certiorari. The circuit court ultimately granted certiorari, concluding that, although the CHA was entitled to review the arrest record of an applicant, petitioner did not pose a threat to the other housing residents where his arrests were dismissed and were largely based on his homelessness. The circuit court granted the CHA's motion to stay its June 5, 2009, order. The CHA appeals the circuit court's June 5, 2009, order.³

DECISION

The CHA operates under the Illinois Housing Authorities Act (310 ILCS 10/1 et seq. (West 2008)). The Illinois Housing Authorities Act did not adopt the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)); therefore, the appropriate vehicle for review is a common law writ of certiorari, as was done in this case. Outcom, Inc. v. Illinois Department of Transportation, 233 Ill.2d 324, 333, 330 Ill.Dec. 784, 909 N.E.2d 806 (2009). We,

[344 Ill.Dec. 209, 936 N.E.2d 738]

however, treat this appeal as we would any other appeal for administrative review. Outcom, Inc., 233 Ill.2d at 337, 330 Ill.Dec. 784, 909 N.E.2d 806. " 'In administrative cases, we review the decision of the administrative agency, not the determination of the circuit court.' " Outcom, Inc., 233 Ill.2d at 337, 330 Ill.Dec. 784, 909 N.E.2d 806, quoting Wade v. City of North Chicago Police Pension Board, 226 Ill.2d 485, 504, 315 Ill.Dec. 772, 877 N.E.2d 1101 (2007).

At issue is whether the CHA had the authority to reject petitioner's application for housing based on his arrest record. The CHA contends its decision was accurate where petitioner's arrests in the preceding three years demonstrated that he was a risk to the health, safety, and welfare of other tenants. Petitioner responds that the CHA's decision rejecting his application was contrary to the governing federal statutes and regulations that permit denial of an application only where the applicant has engaged in past criminal activity. Petitioner attests that mere arrests such as his do not constitute criminal activity.

The issue before us involves a mixed question of fact and law. "[A] mixed question is one 'in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or * * * whether the rule of law as applied to the established facts is or is not violated.' "AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 392, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001), quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66, 80 n. 19 (1982). As a result, we review the CHA's denial of petitioner's application under the clearly erroneous standard. Outcom, Inc., 233 Ill.2d at 337, 330 Ill.Dec. 784, 909 N.E.2d 806. An agency's decision is clearly erroneous only where, after reviewing the entire record, the reviewing court is " 'left with the definite and firm conviction that a mistake has been committed.' " Outcom, Inc., 233 Ill.2d at 337, 330 Ill.Dec. 784, 909 N.E.2d 806, quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 395, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001).

The CHA, as a federally-financed housing authority and pursuant to the United States Housing Act of 1937 (Housing Act) (42 U.S.C. § 1437 et seq. (2006)), promulgated rules and regulations regarding selection and eligibility for admission to public housing within its Admissions and Continued Occupancy Policy (ACOP).⁴ The majority of the ACOP is a compilation of the regulations of the Department of Housing and Urban Development (HUD). See 24 C.F.R. § 5.100 et seq. (2008); 24 C.F.R. § 960.101 et seq. (2008).

Relevant to this appeal, the ACOP provides that "[a]ll applicants will be screened in accordance with HUD regulations and sound management practices. Screening will include a criminal background, credit, and residential history check." FY2007 ACOP § II.F. During the screening process, applicants are required "to demonstrate their ability to comply with the essential obligations of tenancy" which includes "[t]o not engage in criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents, staff, or people in the immediate vicinity." FY2007 ACOP § II.F(1)(h), citing 24 C.F.R. § 960.203 (2006).

[936 N.E.2d 739, 344 Ill.Dec. 210]

According to the screening criteria, the CHA will reject an application where the CHA "can document via police arrest and/or conviction documentation" that "[a]n applicant * * * has a criminal history in the past three years that involves crimes of violence to persons or property as documented by police arrest and/or conviction documentation." FY2007 ACOP § II.G.14(d), citing 24 C.F.R. § 960.203(c)(3) (2006) ("[a] history of criminal activity involving crimes of physical violence to persons or property or other criminal acts which would adversely affect the health, safety or welfare of other tenants"). Crimes of violence are described as including, but not limited to:

"homicide or murder; destruction of property or vandalism; burglary; armed robbery; theft; trafficking; manufacture, use, orpossession of an illegal drug or controlled substance; threats or harassment; assault with a deadly weapon; domestic violence; sexual violence, dating violence, or stalking; weapons offenses; criminal sexual assault; home invasion; stalking; kidnapping; terrorism; and manufacture, possession, transporting or receiving explosives." FY2007 ACOP § II. G. 14(d).

However, this general rule for rejecting applicants is limited...