Thorpe v. Housing Authority of the City of Durham Petitioner's Reply to Respondent's Brief in Opposition to Petition for Writ of Certiorari

    (Ecurt nl %  Mnxtth Mutts
O ctober T er m , 1967 

No. 1003

In th e

J oyce C. T horpe ,
Petitioner,

--Y.--

H ousing A u th o rity  oe t h e  Cit y  of D u r h a m .

PETITIONER’S REPLY TO RESPONDENT’S BRIEF 
IN OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

J ack  Greenberg 
J am es M. N abrit , III 
C harles S teph en  R alston 
C harles Ii. J ones, Jr.

10 Columbus Circle
New York, New York 10019

M . C. B urt
213% West Main Street 
Durbam, North Carolina

R . M ic h ael  P ran k
1238A Carrolburg Place, S.W. 
Washington, D. C.

Attorneys for Petitioner
Of Counsel:

B rian  Glick  
E dward Y. S parer



I N D E X

PAGE

Petitioner Did Not Have Any Opportunity to Explore 
the Reasons for Her Eviction in the State Trial 
Court ..............................................................................  1

T able of A uthorities

Cases:
Culbertson v. Rogers, 242 N.C. 622, 89 S.E.2d 299

(1955) ....................................................... ..... ...............- 2

Flanner v. St. Joseph Home for the Blind Sisters of 
St. Joseph of Newark, 227 N.C. 342, 42 S.E.2d 225 
(1947) ............................................................................  2

Gurganus v. Guaranty Bank & Trust Co., 246 N.C. 655,
100 S.E.2,1 81 (1957) ...........................    2

H. L. Coble Construction Co. v. Housing Authority of 
the City of Durham, 244 N.C. 261, 93 S.E.2d 98
(1956) ..........................................................   2

Smith v. Railroad, 147 N.C. 603 (1908) .................. . 2
State v. Huskins, 209 N.C. 727, 184 S.E. 480 (1936) .... 2

Other Authority.

McCormick, Evidence, 43 (1954) .............................   3



I n  th e

Supreme Qkwrt at tlje Unitpft States
O ctober T er m , 1967 

No. 1003

J oyce C. T horpe ,

—v.—
Petitioner,

H ousing A u th o rity  of t h e  C it y  of D u r h a m .

PETITIONER’S REPLY TO RESPONDENT’S BRIEF 
IN OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

Petitioner Did Not Have Any Opportunity to Explore 
the Reasons for Her Eviction in the 

State Trial Court

Respondent, in its brief in opposition to the petition for 
writ of certiorari, again contends that Mrs. Thorpe had 
an opportunity to explore the reasons for her eviction by 
the Housing Authority by discovery or through direct or 
cross-examination of the executive director of the Author­
ity in the Superior Court. Petitioner, in her petition for 
certiorari, has argued that no such opportunity existed 
because of the narrow issue involved in the state trial 
court proceedings. Both the trial court and the North Caro­
lina Supreme Court, in its original opinion, held that the 
reason for Mrs. Thorpe’s eviction was immaterial since 
the only questions in the summary eviction proceeding 
were whether the Housing Authority was the owner of



2

the property and whether petitioner was holding over past 
the term of her lease after she had been given notice to 
vacate.

In finding that the reasons for termination were imma­
terial to this case, the Superior Court and the Supreme 
Court of North Carolina necessarily precluded any means 
of determining what those reasons were and of obtaining 
a hearing on their legal and factual basis. Under North 
Carolina practice, discovery is not available with respect 
to issues which are held immaterial to the cause of action. 
See, e.g., Flanner v. St. Joseph Home for the Blind Sisters 
of St. Joseph of Newark, 227 N.C. 342, 42 S.E.2d 225 (1947); 
H. L. Coble Construction Co. v. Housing Authority of the 
City of Durham, 244 N.C. 261, 93 S.E.2d 98 (1956).

Even if the reasons for termination could have been 
obtained through discovery or otherwise, the holdings of 
the Superior Court and of the Supreme Court would have 
precluded petitioner from obtaining a hearing on the legal 
and factual basis for the reasons. Since the reasons were 
held legally immaterial, any affirmative evidence introduced 
by the petitioner to challenge the basis for such reasons 
would, of course, not be admissible. Under North Caro­
lina law, as in most states, the test of admissibility is 
relevance and materiality of the evidence with relation to 
the specific issues on which a case is tried. See, e.g., Gur- 
ganus v. Guaranty Bank cB Trust Co., 246 N.C. 655, 100 
S.E.2d 81 (1957); Culbertson v. Rogers, 242 N.C. 622, 89 
S.E.2d 299 (1955).

Similarly, the Housing Authority officials could not have 
been cross-examined as to the basis for their reasons. 
While North Carolina has a broad scope of permissible 
cross-examination, such examination must minimally re­
late to “matter relevant to the inquiry.” See, e.g., Smith 
v. Railroad, 147 N.C. 603 (1908); State v. Huskins, 209



3

N.C. 727, 184 S.E. 480 (1936). See, also, McCormick, 
E vidence, 43 (1954). Again, however, the holdings of the 
Superior Court and of the North Carolina Supreme Court, 
as a matter of law, found the reasons to be irrelevant to 
the inquiry.1 Thus, neither the proceedings as a whole 
nor any one part of them afforded petitioner the oppor­
tunity to build her case or to confront the case of her 
adversaries on the one crucial issue, the reasons for termi­
nation of the lease agreement.

Respectfully submitted,

J ack  Greenberg
J ames M. N abrit , III
Charles S teph en  R alston
C harles H. J ones, J r .

10 Columbus Circle 
New York, New York 10019

M. C. B urt
213% West Main Street 
Durham, North Carolina

R. M ich ael  F rank
1238A Carrolburg Place, S.W. 
Washington, D. C.

Attorneys for Petitioner
Of Counsel:

B rian  Glick  
E dward Y . S parer

1 If cross-examination is limited to matters relevant to the in­
quiry, then such an avenue is, of course, precluded as a means of 
finding out the reasons for termination in the first instance in light 
of the finding that the reasons are “ immaterial.” Moreover, even 
if the reasons could have been elicited in cross-examination, dis­
covery of the reasons at that time—in the middle of the trial itself 
—would not have afforded constitutionally adequate notice of the 
nature of the charges against the petitioner.



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