Williams v. Housing Authority of Milwaukee

Decision Date22 December 2009
Docket NumberNo. 2009AP435.,2009AP435.
PartiesMichelle WILLIAMS, Plaintiff-Respondent, v. HOUSING AUTHORITY OF the CITY OF MILWAUKEE, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher P. Riordan and Douglas M. Raines of von Briesen & Roper, S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of A.G. Hartman of Legal Action of Wisconsin, Inc., Milwaukee.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

¶ 1 BRENNAN, J

Michelle Williams filed a writ of certiorari in Milwaukee County Circuit Court, arguing that the Housing Authority of the City of Milwaukee's denial of her application for rent assistance was not based on sufficient evidence. The Housing Authority denied Williams's application because she had been found guilty, upon default judgment following a no contest plea, to municipal citations for disorderly conduct, and assault and battery. The circuit court granted Williams's writ of certiorari on the grounds that the Housing Authority based its decision solely on uncorroborated hearsay. We agree with the circuit court and affirm.

BACKGROUND

¶ 2 On September 8, 2004, Williams was issued two citations following an incident at a Milwaukee restaurant where she was employed: a citation for disorderly conduct and another for assault and battery. Recording the statement of a witness on the back of the disorderly conduct citation, the responding police officer wrote that after Beth Koceja, Williams's manager at the restaurant, fired Williams:

Williams shouted "F____ you, [b]itch, I'm going to beat your f____ing [ass]." Williams struck Koceja with a phone then followed her into the [illegible] office [illegible] slapped her once in the face. Williams knocked items off the [r]estaurant counter tops as customers were exiting causing a large disturbance.

¶ 3 Williams went to municipal court to contest the citations, but the complainant, Koceja, did not appear, and the matter was adjourned and rescheduled. On the new hearing date, Williams failed to appear because she had lost her job, was homeless and was living in a shelter. She testified that she tried to re-open the citations later but was told she could not. The municipal court entered a no contest plea on her behalf and found her guilty upon default judgment in January 2005.

¶ 4 Williams filed an application for rent assistance through the Housing Authority's Housing Choice Voucher Program in 2007. Her application was denied in July of that same year, following a criminal background check, because of her municipal citations for disorderly conduct, and assault and battery.

¶ 5 In August 2007, the Housing Authority held an informal hearing at Williams's request, to review its denial of her application. At that hearing, the Housing Authority offered the citations into evidence. The citations included the officer's notes of the witness's statement.

¶ 6 Williams testified during the hearing as follows:

Personally I would like to say that I am not a bad person. And I know ... what you heard is really incriminating against me. On that incident, the day that happened, yes, I was fired from George Webb and upon leaving there was a public phone in George Webb and I was calling for a ride. I had no problem. I was not upset. I was only mad because I knew that I was fired unjustly, unfairly. There was no reason for her to fire me. And I was on the phone and it was in the back of the store. There [are] two bathrooms in the back of the room to the kitchen area. She came back there and she hung up my phone call. And then she proceeded to start grabbing me and pulling me and yelling at me and telling me to get out of the store. She was blocking my way. And I asked her to please get your hands off of me. I asked her twice. I did not slap her. I did not hit her. I didn't push her out of my way because she started pointing her arms and yelling at me. I left the store and proceeded to go home.

¶ 7 In a written decision issued in October 2007, the Housing Authority upheld the denial of Williams's application for rent assistance, finding that:

[Williams] displayed extremely disturbing behavior in a public place, distressing the customers. She also made threats of bodily harm to the restaurant manager and hit her with the telephone, per the citation. [Williams] claimed that she did not become violent towards the manager; however, [Williams] did not appear in court to dispute it. As such, the denial shall be upheld.

¶ 8 Williams sought certiorari review of the Housing Authority's decision, arguing that it lacked sufficient evidence to support its decision because it relied entirely on uncorroborated hearsay. The circuit court agreed, granting the writ. The Housing Authority appeals.

DISCUSSION

¶ 9 When we review an application for a writ of certiorari, we review the agency's decision, not the decision of the circuit court. Kraus v. City of Waukesha Police & Fire Comm'n, 2003 WI 51, ¶ 10, 261 Wis.2d 485, 662 N.W.2d 294. The scope of certiorari review is limited to whether the Housing Authority: (1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) was arbitrary, oppressive, or unreasonable; or (4) might reasonably have made the order or finding based on the evidence. See id.

¶ 10 In seeking certiorari review, Williams challenged whether the Housing Authority's decision was arbitrary, oppressive, or unreasonable; and whether the Housing Authority reasonably made the order based on the evidence. Both questions require us to determine whether the Housing Authority's decision is founded on sufficient evidence. See State ex rel. Harris v. Annuity & Pension Bd., 87 Wis.2d 646, 651-52, 275 N.W.2d 668 (1979). "The sufficiency of evidence on review by common law certiorari is identical to the substantial evidence test used for the review of administrative determinations under [WIS. STAT.] ch. 227."1 Harris, 87 Wis.2d at 652, 275 N.W.2d 668. "Under this standard a court does not pass on questions of credibility, nor does it weigh the evidence. The test is whether the evidence reasonably supports the decision." Id. If we conclude that the Housing Authority's decision is not supported by sufficient evidence, we may overturn it. Cf. Village of Menomonee Falls v. Wisconsin DNR, 140 Wis.2d 579, 594, 412 N.W.2d 505 (Ct.App. 1987).

¶ 11 The Housing Authority may properly deny admission to its rent assistance program to an individual who has engaged in either "[v]iolent criminal activity" or "[o]ther criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity." 24 C.F.R. § 982.553(a)(2)(ii) (2009). The issue on appeal is whether the Housing Authority's decision to deny Williams's rent assistance application, as set forth in its written decision, is supported by sufficient evidence in the record. Because the Housing Authority based its factual findings on the responding police officer's written report on the back of the September 2004 citation, we conclude that its findings are not supported by sufficient evidence and affirm the grant of Williams's writ of certiorari.

¶ 12 In its written decision, the Housing Authority found that in September 2004:

[Williams] displayed extremely disturbing behavior in a public place, distressing the customers. She also made threats of bodily harm to the restaurant manager and hit [the manager] with the telephone, per the citation. [Williams] claimed that she did not become violent towards the manager; however, [Williams] did not appear in court to dispute it. As such, the denial shall be upheld.

(Emphasis added.)

¶ 13 The circuit court reversed the Housing Authority's denial of rent assistance because it concluded that, under Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 278 Wis.2d 111, 692 N.W.2d 572, the Housing Authority could not base its decision solely on uncorroborated hearsay evidence (the officer's written notes recalling the witness's statement of what Williams said), and therefore, the Housing Authority lacked sufficient evidence on which to base its denial. We agree.

¶ 14 Uncorroborated hearsay evidence, even if admissible, does not by itself constitute substantial evidence. Id., 278 Wis.2d 111, ¶ 8, 692 N.W.2d 572 (citing Folding Furniture Works, Inc. v. Wisconsin LRB, 232 Wis. 170, 189, 285 N.W. 851 (1939)). Adherence to this rule is premised on hearsay's innate lack of reliability. See id., ¶ 58. "Substantial evidence has been defined ... as `that quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion.'" Id., ¶ 48. Substantial evidence must include something "more than `a mere scintilla' of evidence and more than `conjecture and speculation.'" Id. (citations omitted).

¶ 15 Certainly, hearsay is admissible at informal Housing Authority hearings pursuant to 24 C.F.R. § 982.555(e)(5) (2009), just like it is admissible in state agency hearings pursuant to WIS. STAT. § 227.45(1). However, "the relaxed evidentiary standard is not meant to allow the proceedings to degenerate to the point where an administrative agency relies only on unreliable evidence." Gehin, 278 Wis.2d 111, ¶ 51, 692 N.W.2d 572. The courts are required to "`set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence.'" Id. (citation omitted). "Properly admitted evidence may not necessarily constitute substantial evidence." Id., ¶ 52.

¶ 16 Keeping these standards in mind, we examine the record to determine whether there was sufficient evidence to support the Housing Authority's decision. See Harris, 87 Wis.2d at 651-52, 275 N.W.2d 668. There were only two pieces of...

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