Tolliver v. Hous. Auth. of the Cnty. of Cook

• Decision Date: 19 May 2017
• Docket Number: No. 1-15-3615.,1-15-3615.
• Citation: 82 N.E.3d 1220,2017 IL App (1st) 153615
• Parties: Cherrish TOLLIVER, Petitioner-Appellant, v. HOUSING AUTHORITY OF the COUNTY OF COOK, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 153615

82 N.E.3d 1220

Cherrish TOLLIVER, Petitioner-Appellant,

v.HOUSING AUTHORITY OF the COUNTY OF COOK, Respondent-Appellee.

No. 1-15-3615.

Appellate Court of Illinois, First District, FIFTH DIVISION.

May 19, 2017

Erin Solomon, Eric Shinabarger, and Delilah Flaum, of Winston & Strawn LLP, and Patricia Nelson and Ian Turnipseed, of Chicago Volunteer Legal Services, both of Chicago, for appellant.

Michael E. Kujawa and Deborah A. Ostvig, of Schain, Banks, Kenny & Schwartz, Ltd., of Chicago, for appellee.

OPINION

JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 Petitioner Cherrish Tolliver appeals from a judgment of the circuit court affirming a decision of the respondent the Housing Authority of the County of Cook (HACC) terminating her federally subsidized housing voucher she was receiving pursuant to the Section 8 Housing Choice Voucher Program (HCV Program). For the reasons that follow, we reverse and remand with directions.

¶ 2 BACKGROUND

¶ 3 Petitioner became a participant in the HCV Program in 2007. The program is a federally-funded one in which the United States Department of Housing and Urban Development (HUD) provides rent subsidies to eligible families to assist them in renting privately owned housing. See 42 U.S.C. § 1437f(o) (Supp. IV 2006); 24 C.F.R. § 982.1(a)(1) (2006) ; Khan v. Bland , 630 F.3d 519, 523-25 (7th Cir. 2010). The program is governed by the Code of Federal Regulations (Federal Code) ( 24 C.F.R. § 982.1 et seq . (2006) ) and is administered on the local level by governmental entities referred to as public housing agencies or PHA's ( 24 C.F.R. § 982.1(a) (2006) ), such as the Chicago Housing Authority (CHA).¹ Under the HCV Program, petitioner's landlord received a voucher from the HACC to subsidize a portion of her rent for a house located at 13841 Kanawha Avenue, Dolton, Illinois. See 24 C.F.R. § 982.451 (2006). As one of the conditions for participating in the HCV Program, petitioner agreed to report in writing within 30 days when there was an increase in her household income.

¶ 4 In October 2012, the HACC alleged that the petitioner violated this condition.

In a letter dated October 16, 2012, the HACC notified petitioner that it intended to terminate her from the HCV Program effective November 30, 2012, on the ground that she had failed to timely report an increase in household income from her employment with the Diamond Detective Agency.

¶ 5 Petitioner appeared pro se and challenged the termination at an informal administrative hearing held before a hearing panel. At the hearing, the HACC maintained that the petitioner had failed to report income she received from the detective agency in 2011 and 2012. Petitioner responded that she regularly informed her caseworker via telephone and fax about her sporadic employment situation with the detective agency and that the caseworker routinely accepted such notification. Petitioner explained that due to intermittent layoffs, her employment with the detective agency was sporadic during the years at issue.

¶ 6 On February 19, 2013, a hearing officer with the HACC concluded that the HACC had proven its case by a preponderance of the evidence. The hearing officer issued an order and decision upholding the HACC's decision to terminate petitioner from the HCV Program.

¶ 7 On March 27, 2013, petitioner, acting pro se , filed a petition for judicial review by writ of certiorari in the circuit court. In her petition, petitioner claimed that the decision to terminate her from the HCV Program was contrary to the law.

¶ 8 On August 23, 2013, counsel from the law firm of Kirkland and Ellis and from Chicago Volunteer Legal Services filed a brief in support of the petitioner's petition. The brief concluded in part that the HACC had "misapplied the statute in using a mandatory standard and not affording the Petitioner the statutorily required discretionary basis for decision. Finally, with the myriad of ways in which [the HACC] could have dealt with any alleged failure of Petitioner to timely report continued income, such as affording Petitioner the opportunity to repay any alleged overpayments, or consideration that Petitioner had never before failed to report any income, or that Petitioner's three children would be adversely affected, the decision to terminate Petitioner was unusually harsh by being contrary to the HACC's and HUD's own Administrative Plan and guidebook."

¶ 9 The circuit court agreed with the petitioner's arguments, and on November 15, 2013, remanded the matter to the HACC, directing the housing agency to hold another informal hearing to consider mitigating circumstances. The court determined that the HACC had violated the petitioner's due process rights by terminating her from the HCV Program without considering any mitigating circumstances. The court also held the HACC failed to provide petitioner with notice of termination regarding her unemployment benefits.

¶ 10 Upon remand, instead of holding an informal hearing in accordance with the circuit court's order, the HACC sent petitioner another notice of termination, this time notifying her that she was being terminated from the HCV Program for allegedly failing to report that she had returned to work at the detective agency following layoff periods from 2009 through 2012.

¶ 11 On August 14, 2014, the HACC held a second informal hearing at which petitioner again challenged her termination from the program. On November 5, 2014, the HACC issued an order and decision upholding the termination.

¶ 12 On January 16, 2015, petitioner, through her attorneys, filed a second petition and supporting brief in the circuit court contesting the HACC's latest decision to terminate her from the HCV Program. Petitioner argued that the HACC failed to exercise discretion or consider mitigating circumstances prior to terminating her from the program. She maintained that these failures not only violated applicable federal law, but also violated the circuit court's remand order. Petitioner claimed that the latest reasons the HACC gave for terminating her from the program were outside the scope of the circuit court's remand order.

¶ 13 The circuit court again agreed with the petitioner and on April 3, 2015, reversed the HACC's decision, and issued an order remanding the matter to the HACC, again directing the housing agency to properly consider mitigating circumstances. In response to the circuit court's order, the HACC issued a third order and decision, this time, offering a repayment plan in lieu of termination. The HACC stated that the petitioner could avoid termination and retain her housing voucher if she agreed to repay the HACC $13,586.00. Under the agreement, petitioner would have to enter into a repayment plan within 60 days and pay an up-front lump sum payment of $10,586.00.

¶ 14 On April 29, 2015, petitioner, again through her attorneys, filed a third petition and supporting brief in the circuit court challenging the HACC's decision. Counsel argued that the repayment plan was unreasonable and in violation of federal law as well as the HACC's own repayment policy. Counsel contended it was unreasonable to expect a voucher recipient making $15,000 per year to make a $10,000 down payment within 60 days. Counsel further contended that the HACC's failure to follow its own guidelines in holding interim reexaminations of the petitioner's income status, allowed the housing agency's alleged overpayments to petitioner to unreasonably accumulate over several years, without any notice to petitioner. Counsel claimed that the petitioner did not intentionally misreport her income, and that it would be unreasonable to require her to pay over $10,000 up front, when she had accurately, and in good faith, reported her income.

¶ 15 The circuit court again agreed with the petitioner's arguments, and on July 24, 2015, issued an order remanding the matter to the HACC for a third time, ruling that the repayment plan was not reasonable as required by HUD guidelines.

¶ 16 Upon remand, the HACC issued an amended order and decision on August 18, 2015. In this latest decision, the HACC stated that it would allow the petitioner to enter into a repayment agreement without requiring her to pay an up-front lump sum payment. The HACC stated that as a condition of her reinstatement, petitioner would be required to enter into a repayment agreement by September 30, 2015, to pay $13,586 in installments over 36 months. On September 15, 2015, the HACC revised the amount of overpayment petitioner was required to pay to $13,488 over 36 months.

¶ 17 On October 2, 2015, the petitioner filed a fourth petition and supporting brief in the circuit court challenging the HACC's decision for the same reasons given in her previous petition. On November 16, 2015, the circuit court affirmed the HACC's decision to terminate the petitioner from the HCV Program and dismissed the case. This timely appeal followed.

¶ 18 ANALYSIS

¶ 19 This case is before us on appeal from a common law writ of certiorari . The common law writ of certiorari is used to obtain circuit court review of an administrative decision when the administrative agency's enabling statute does not expressly adopt the Administrative Review Law (Review Law) ( 735 ILCS 5/3-101 et seq . (West 2010)) and provides no other method for reviewing the agency's decisions. Outcom, Inc. v. Illinois Department of Transportation , 233 Ill.2d 324, 332-33, 330 Ill.Dec. 784, 909 N.E.2d 806 (2009). The CHA operates under the Housing Authorities Act ( 310 ILCS 10/1 et seq. (West 2008)). See Landers v. Chicago Housing Authority , 404 Ill.App.3d 568, 571, 344 Ill.Dec. 206, 936 N.E.2d 735 (2010). The Housing Authorities Act did not adopt the Review Law and therefore the appropriate vehicle for review is a common law writ of certiorari as was done in this case.

¶ 20 Following a circuit court ruling on a writ of certiorari seeking review of an administrative decision, we " ‘treat th[e] appeal as we...