Townsend v. Port Gamble S'klallam Housing Authority, (2004)

• Decision Date: 18 October 2004
• Docket Number: POR-CI-5/03-091
• Parties: NANCY TOWNSEND, APPELLANT, v. PORT GAMBLE S'KLALLAM HOUSING AUTHORITY, RESPONDENT.
• Court: Port Gamble Sklallam Tribal Court of Appeals

NANCY TOWNSEND, APPELLANT, v. PORT GAMBLE S'KLALLAM HOUSING AUTHORITY, RESPONDENT.

No. POR-CI-5/03-091

Port Gamble S'klallam Tribal Court of Appeals

October 18, 2004

SYLLABUS BY THE COURT

Trial court upheld Housing Authority decision terminating Appellant's Mutual Help Occupancy Agreement on grounds that Appellant's use of the property to host church activities created a nuisance in violation of the Agreement.Court of Appeals holds (1) procedures utilized by Housing Authority provided due process; (2) Tribe may enforce a nuisance ordinance even when doing so may have an indirect effect on the practice of religion; (3) evidence in the record supported the ruling of the trial court; and (4) failure of Housing Authority review board to administer an oath to witnesses did not require reversal where the validity of the testimony given was not called into question.Trial court affirmed.

Judith Hunt for AppellantNancy Townsend; Joanne Foster for Respondent Housing Authority.

Before: Gary F. Bass, Chief Justice; Lisa L. Atkinson Justice; Martin C. Bohl, Justice.

OPINION

ATKINSON, J.

This matter came before the Court of Appeals for the Community Court pursuant to Appellant's Notice of Appeal filed on January 16, 2004.The Appellant is appealing the Findings of Fact and Conclusions of Law of the Community Court issued on December 29, 2003.

Oral Argument was heard on June 23, 2004.Spokesperson Judith Hunt appeared for AppellantNancy Townsend, and attorney Joanne Foster appeared for the Respondent Housing Authority.

SUMMARY

This case concerns a housing appeal from the decision of the Port Gamble S'Klallam Tribal Housing Authority ("Housing Authority") in which the Appellant was found to have violated her Mutual Help Occupancy Agreement ("MHOA," or "Agreement"), whereupon the Housing Authority terminated Appellant's Agreement.The Port Gamble S'Klallam Tribal Community Court("Community Court") upheld the decision of the Housing Authority.We affirm.

JURISDICTION

This Court has personal jurisdiction over AppellantNancy Townsend because she is a member of the Port Gamble S'Klallam Indian Tribe and resides within the exterior boundaries of the Port Gamble S'Klallam Indian Community.Port Gamble S'Klallam Tribal Code, Title 1, § 1.02.01and§ 1.02.03.This Court has personal jurisdiction over Respondent Port Gamble S'Klallam Tribal Council(hereinafter referred to as Tribe) pursuant to the same section.This Court has territorial jurisdiction over this action because the subject of this appeal occurred within the exterior boundaries of the Port Gamble S'Klallam Indian Community.(Amended Constitution and Bylaws of the Port Gamble Indian Community, Article I).

Further this Court has subject matter jurisdiction over this action as it arises from an appeal of the decision of the Port Gamble S'Klallam Tribal Community Court and the Port Gamble S'Klallam Housing Authority.

PROCEDURAL HISTORY

This matter comes before the Port Gamble S'Klallam Appellate Court with a five-year history.For clarity of this opinion, we will compile the history into the brief outline below.

AppellantNancy Townsend entered into a rental agreement with the Housing Authority on April 1, 1998.The agreement was to be converted into a Mutual Help Occupancy Agreement after one year, however, there was a delay in the actual conversion to MHOA due to an oversight on the part of the Housing Authority.

The Housing Authority sent letters to Appellant on April 25, 2000, January 24, 2001, and October 8, 2002, informing her of complaints from neighbors concerning excessive noise coming from her residence.The Housing Authority had twice proposed to Appellant that she would need to conclude any Native American Church activities that could be heard beyond closed doors by 10:00 p.m., and had held a meeting with Appellant in an attempt to resolve this matter.At the meeting, the Appellant agreed to limit the drumming and singing to Fridays and Saturdays from 7:00 p.m. to 10:00 p.m.(Findings of Fact and Conclusions of Law, pages 2-3).

On January 8, 2003, when the issue still had not been resolved, the Housing Authority terminated Appellant's MHOA and advised her of her right to a hearing.The hearing was conducted on January 16, 2003, with the Housing Authority deciding to uphold the termination.(Id.).

On May 8, 2003, the Housing Authority filed a Complaint for Unlawful Detainer against Appellant.The matter was heard by the Community Court on July 15, 2003, and was remanded back to the Housing Authority for a more thorough decision.The revised decision was provided by the Housing Authority on August 5, 2003, a response was provided by Appellant on September 23, 2003, and the parties were again heard by the Community Court n October 21, 2003.(Id.)

On December 29, 2003, the Community Court issued its decision to uphold the termination of Appellant's MHOA.Appellant filed her appeal in a timely manner and the appeal is now properly before the Court of Appeals.

FACTUAL BACKGROUND

The Port Gamble Tribe has adopted a tribal land code containing eviction procedures."Nuisance" is defined and addressed in this code."Nuisance is the maintenance of real property of a condition which: (1) unreasonably threatens the health or safety of the public or of neighboring land users; or (2) unreasonably and substantially interferes with the ability of neighboring property users to enjoy the reasonable use and occupancy of their property."(§10.02.02 (h)).If a person is found by the Housing Authority to have maintained a nuisance on his/her property, the Housing Authority is required to provide notice to said party identifying the alleged nuisance and commanding the tenant/homeowner to cease said nuisance, or surrender the property.(§ 10.02.03(b)(v)).

In addition, by entering into the Mutual Help and Occupancy Agreement, Ms. Townsend agreed to abide by all of its provisions, including policies and procedures established by the Port Gamble Housing Authority.The key provision cited by the Housing Authority in this matter is Section VI.B6, which states "Homebuyers/residents shall not engage in unlawful activities that could cause a disturbance to neighbors and the surrounding community.The Port Gamble S'Klallam Housing Authority shall maintain a record of all homebuyer/resident complaints.Three written complaints within a year will result in termination of lease or occupancy agreement.The tenant/homebuyer will be afforded appeal process."The Authority provided evidence that there had been more than three complaints of Nuisance and public disturbance within a year, thereby triggering the Authority's responsibility to terminate Ms. Townsend's MHOA.Ms. Townsend was afforded the opportunity to appeal, and did so.

ISSUES ON APPEAL

1.What is the standard of review of this matter?

2.Were the Appellant's Due Process rights violated by the Housing Authority?

3.Did the Community Court err in its ruling in favor of the Respondent?

DISCUSSION

STANDARD OF REVIEW

The Port Gamble S'Klallam Tribe has adopted Title 7 of the Law & Order Code entitled "Appellate Proceedings."Section 7.03.03 of Title 7 states, "The Court of Appeals shall review the record of proceedings from the Community Court, appellate brief and oral argument in rendering its decision."This Court has reviewed said proceedings, as well as appellate briefs submitted by both parties.As stated above, this Court held oral arguments in this matter on June 23, 2004.All documents in the record have been reviewed and considered for the purposes of rendering this opinion.

DUE PROCESS

The Port Gamble S'Klallam Tribal government has enacted the Port Gamble S'Klallam Housing Authority Eligibility Admission, and Occupancy Policies and Procedures ("Policies and Procedures") to ensure that housing matters are handled in a fair and consistent manner among homebuyers and renters.Before the Court is whether Appellant's right to due process under the Indian Civil Rights Act("ICRA"), 25 U.S.C. §1302(8), was violated by the termination of her Mutual Help Occupancy Agreement ("MHOA") with the Housing Authority.Mutual help housing participants have a property interest in their homes which is protected by the ICRA.Navajo Housing Authority v. Helen Betsoi, No. A-CV-37-83(Navajo 09/13/1985).Local housing authorities, such as the Housing Authority in this case, are bound, at minimum, by federally mandated grievance procedures as a result of Federal funding received by the United States Department of Housing and Urban Development("HUD").Thorpe v Housing Authority,393 U.S. 268, 274(1969)(holding grievance procedures circulated by the HUD in pamphlet form, later codified as 42 U.S.C. 1437(d)(k), to be mandatory rather than advisory with regard to local housing authorities).The Federally-mandated grievance procedures serve as the basic skeleton of due process requirements under federally assisted Mutual Help Home Ownership Opportunity Programs.These procedures stipulate that "tenants will (1) be advised of the specific grounds of any proposed adverse public housing agency action; (2) have an opportunity for a hearing before an impartial party upon timely request à (3) have an opportunity to examine any documents or records or regulations related to the proposed action; (4) be entitled to be represented by another person of their choice at any hearing; (5) be entitled to ask questions of witnesses and have others make statements on their behalf; and (6) be entitled to receive a written decision by the public housing agency on the proposed action."42 U.S.C. 1437 (d)(k), applied under similar circumstances in Chitimacha Housing Authority v. Gerry MartinNo. CV-93-0006(Chitimacha 09/01/1994) and...