Singleton v. Drew

• Decision Date: 13 March 1980
• Docket Number: Civ. A. No. 79-C-166.
• Parties: Bobby SINGLETON and Irene Singleton, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. William Ryan DREW, Individually and in his official capacity as Executive Director and Secretary of the Housing Authority of the City of Milwaukee; the Housing Authority of the City of Milwaukee, a public body corporate and politic, and their agents, employees, successors in office, assistants, and all others acting in concert or cooperation with them or at their direction or under their control, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

485 F. Supp. 1020

Bobby SINGLETON and Irene Singleton, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. William Ryan DREW, Individually and in his official capacity as Executive Director and Secretary of the Housing Authority of the City of Milwaukee; the Housing Authority of the City of Milwaukee, a public body corporate and politic, and their agents, employees, successors in office, assistants, and all others acting in concert or cooperation with them or at their direction or under their control, Defendants.

Civ. A. No. 79-C-166.

United States District Court, E. D. Wisconsin.

March 13, 1980.

Lawrence G. Albrecht, James A. Gramling, Jr., and Mary M. Gundrum, Legal Action of Wisconsin, Inc., Milwaukee, Wis., for plaintiffs.

Mary Ellen Poulos, Asst. City Atty., Milwaukee, Wis., for defendants.

DECISION AND ORDER

TERENCE T. EVANS, District Judge.

This is an action brought on behalf of applicants for public housing in the City of Milwaukee seeking, in part, an injunction to require the city to extend procedural due process to those whose applications are rejected. Pending before the Court are a motion for class certification and a motion for partial summary judgment. The motions will be granted as indicated below.

Plaintiffs have moved for the certification of a class "consisting of all applicants for public housing operated by the Housing Authority of the City of Milwaukee whose applications have been, are being, or will be denied by the defendants". (Complaint, ¶ 6). They claim that approximately 50 people per year are members of the potential class, and that the requirements for certification in Rule 23(a) and 23(b)(2), Federal Rules of Civil Procedure, are met.

Rule 23(a) provides for certification of a class if:

* * * (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

These requirements are met. The class, consisting of 50 or so persons per year, involves 202 applicants since 1974. It is, therefore, sufficiently large. Swanson v. American Consumer Industries, Inc., 415 F.2d 1326 (7 Cir., 1969). As to the second and third requirements, defendants state that they do not argue with the assertion that "all applicants are entitled to identical procedural protections under the law". Since procedural protections are the very subject of the class aspects of this action, requirements (2) and (3) are met. Finally, the representative parties in this action will adequately represent and protect the interests of the class.

The final requirement for certification is that one of the requirements set forth in Rule 23(b) must also be met. This action falls within Rule 23(b)(2):

* * * the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; * * *

The Court finds that certification of a class as defined in the complaint is appropriate.

Plaintiffs have also filed a motion for summary judgment on the class claims for declaratory and injunctive relief set forth in ¶¶ 27 and 28 of the complaint.¹ As a factual basis for decision on the motion, the parties have filed a detailed Joint Statement of Stipulated Facts. These facts are appended to this decision and adopted as the Court's findings of fact.

The Housing Authority of the City of Milwaukee (HACM) is "a public housing agency" as defined in 42 U.S.C. 1437a(6). Applicants for public housing with the Authority must file a written application which, if a vacancy exists, is reviewed to determine financial eligibility. Following the financial determination, the application is assigned to the Community Services Division (CSD) which, under the direction of the Assistant Director of Resident Services, performs a home visit to investigate an applicant's acceptability for public housing. If the Investigators determine that an applicant is ineligible, one of seven grounds for rejection is marked on a form entitled "Summary Form-Rejected Applicants". This recommendation is reviewed by the Director of the CSD and the Assistant Director of Resident Services. Their decision becomes the final decision of HACM. A form letter of rejection is sent to the applicant setting forth the grounds for rejection solely in terms contained on the "Summary Form-Rejected Applicant". In the case of the named plaintiffs, the rejection form stated:

"Conduct which would interfere with other tenants and diminish their enjoyment of the premises."

No factual basis for the determination is set forth in the letter nor are time limits imposed on any stage of the procedures outlined above.

Until 1977, rejected applicants could appeal their denial by use of the HACM grievance procedure. Since 1977, those denied eligibility are given the following rights:

In the event of rejection, the Tenant Services Section will inform the applicant in writing and terminate the application. * * * The letter will inform the applicant that he/she may contact the Assistant Secretary concerning any questions. Questions received from applicants rejected after the home visit will be directed to the Assistant Secretary for followup. Housing Authority City of Milwaukee Policy and Procedures Manual, p. 5.

Since January 1, 1977, 50 rejected applicants have questioned the determination of ineligibility. The "hearings" which have been held in response to an appeal are, in effect, meetings conducted by the Management Administrative Assistant II (Mary Boyce) and the Assistant Director for Resident Services of CSD (Susan July). CSD, as noted above, makes the home visit, and the Assistant Director is one of the persons whose decision is considered during the review. HACM generally does not present witnesses during the review procedure although the applicant is allowed to present witnesses. No oaths are taken; no record is made; no subpoenaes are issued; and the evidence is not restricted to the grounds for ineligibility set forth in the written notice. At the conclusion of the meeting, it is not unusual for the two persons who conducted the examination to obtain additional evidence. Together they make a decision which is the final decision of HACM. The applicant is notified of the result by letter. The letter does not set forth the evidence relied on to support the denial of the application. The only review of the decision of HACM is by writ of certiorari. To date, no rejected applicant has sought judicial review on a writ.

Plaintiffs contend that these procedures violate the due process clause of the Fourteenth Amendment; the United States Housing Act, 42 U.S.C. 1437d(c)(3), the Regulations of the Department of Housing and Urban Development (HUD); and Chapter 68, Wis.Stats. HACM contends that it complies fully with 42 U.S.C. 1437d(c)(3) and the HUD regulation, and that the plaintiffs are not entitled to the protections of the due process clause or Chapter 68, Wisconsin Statutes.

Whether the situation at hand requires an excursion into the murky waters of due process entitlement is questionable in this case. The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Plaintiffs argue that the right of admission to public housing is a property interest protected by the due process clause. Rejection of an application, the argument runs, must therefore be accompanied by an umbrella of due process rights. The defendants contend that an application for public housing and the procedures for acceptance or rejection fall short of the genre of "property interests" singled out for due process protection.

Once an applicant for public housing is accepted and becomes a tenant, there can be no doubt that a "property interest" is created, entitling the tenant to protections of the due process clause. Caulder v. Durham Housing Authority, 433 F.2d 998 (4 Cir., 1970). Is a significant "property interest" in existence before an applicant is accepted? The answer seems to lie in a grey area. While courts have consistently and wisely eschewed rigid limitations on procedural due process, they have, at the same time, observed that certain boundaries exist. One of the boundaries seems to be that the Fourteenth Amendment procedural protection of property is a safeguard of the interests a person has already acquired in specific benefits. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Thus, the Supreme Court has held that a person already receiving welfare benefits under standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. Also, Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435, and Vargas v. Trainor, 508 F.2d 485 (7 Cir., 1974). In the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle "proscribing summary dismissal from public employment without hearing or inquiry required by due process" also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued...