Thorpe v. Housing Authority of the City of Durham Reply Brief for Petitioner

    I n  t h e

i>uprpmp (&mrt of tl?p Intfrfr Blates
October T erm , 1968 

No. 20

J oyce C. T horpe ,
Petitioner,

— v .—

H ousing A u th o rity  oe th e  C it y  oe D u r h a m , 

on  w r it  of certiorari to th e  supreme  court
OE NORTH CAROLINA

REPLY BRIEF FOR PETITIONER

J ack  Greenberg 
J am es M. N abrit , III 
Charles S teph en  R alston  
Charles H . J ones, J r .

10 Columbus Circle
Xew York, New York 10019

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

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

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

Attorneys for Petitioner

W illiam  B e n n ett  T urner  
E dward Y. S parer 
B rian  Glick

Of Counsel



I N D E X

T able oe A uthorities

Cases: p a g e

Holmes v. New York City Housing Authority, 398 F.2d 
262 (2nd Cir. 1968) .................. ............... ...................  2,3

Randell v. Newark Housing Authority, 384 F.2d 151 
(3rd Cir. 1967) ........................ ..................................  3,5

Thorpe v. Housing Authority, 386 U.S. 670 (1967)..... 5

Statute:

Massachusetts General Laws, Sec. 43, Chap. 121 ........  4

Article:

Van Alstyne, The Demise of the Right-Privilege Dis­
tinction in Constitutional Law, 81 Harv. L.Rev.
1439 (1968) 8



In th e

CEmtrt sif %  Mnxtth
O ctober T er m , 1968 

No. 20

J oyce C. T horpe ,
Petitioner,

— v .—

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

on w rit  op certiorari to th e  supreme court

OF NORTH CAROLINA

REPLY BRIEF FOR PETITIONER

Respondent Authority concedes, at page 11 of its brief:
“We do not contend that, in the case of Housing Author­
ity leases if the purpose of the notice of termination of 
the lease is to proscribe the exercise of a constitutional 
right by the tenant the notice would be effective; the 
notice would be invalid, and the term of the lease and 
its automatic renewal would not thereby be affected.” 1

Thus, the Authority agrees that if termination is for the 
purpose of limiting the tenant’s constitutional rights, it is 
invalid notwithstanding the provisions of the lease and 
notice of termination in accordance with the lease. This 
concession embodies admissions that (1) the Authority, un­
like a private landlord, is subject to constitutional restric­
tions in dealing with its tenants, and (2) the tenant’s rights

1 Respondent also agrees at page 12 of its brief that there are 
reasons for which it could not terminate petitioner’s lease.



2

are not merely contractual and dependent on the lease. The 
Authority’s position lends additional weight to petitioner’s 
contention that prior notice of the reason for eviction is 
essential in order to determine whether the Authority is 
acting constitutionally, for if the Authority is not required 
to give a reason for eviction before bringing summary pro­
ceedings, it can easily disguise eviction for a proscribed 
reason by relying solely on the 15-day notice provision of 
the lease.

Nevertheless, the Authority clings tenaciously2 to its 
position that it can evict arbitrarily. It would say, in ef­
fect, to its tenants: We can evict you from our public 
housing project for any reason, however silly, or for no 
reason at all. The Authority will not tell a tenant why he 
is being thrown out and will not allow the tenant to find 
out until after it orders him to leave and only if it sues for 
possession. Even then the Authority will not disclose its 
motive. If the tenant somehow suspects that it is evicting 
him because it wants to deprive him of some constitutional 
right, it is up to the tenant to get a lawyer and prove at 
trial that he is being evicted for an unconstitutional reason.

No agency of government subject to constitutional re­
strictions should be permitted so to trifle with the rights of 
beneficiaries of government programs. To permit a hous­
ing authority to deal in secrecy, with no procedural safe­
guards for its tenants, is to increase the likelihood of favor­
itism, partiality, and arbitrariness on the part of the au­
thority ; “the existence of an absolute and uncontrolled dis­
cretion in an agency of government vested with the ad­
ministration of a vast program, such as public housing, 
would be an intolerable invitation to abuse.” Holmes v. 
New York City Housing Authority, 398 F.2d 262, 265 (2nd 
Cir. 1968).

2 See respondent’s brief, 12-18.



3

In the Holmes case, the Second Circuit decided that ap­
plicants for apartments in the New York City Housing 
Authority’s projects were entitled, as a matter of due proc­
ess of law, to have the Authority promulgate standards for 
admission to public housing and establish fair and orderly 
procedures, including informing applicants of the reasons 
for a determination of ineligibility. The Holmes decision is 
persuasive in the instant case, for it would be anomalous if 
mere applicants for public housing were entitled to some 
semblance of due process but existing tenants could sum­
marily be thrown out without being told a reason.

In support of its contention that it can evict arbitrarily, 
respondent cites Randell v. Newark Housing Authority, 384 
F.2d 151 (3rd Cir. 1967).3 The Randell ease does not sup­
port the Authority’s position. In marked contrast to the 
procedures followed in the instant case, where the Author­
ity specifically refused to give Mrs. Thorpe any reason for 
her eviction and specifically refused to give her an oppor­
tunity or a hearing to inquire into its reason, if any, the 
housing authority in the Randell case systematically fol­
lowed these procedures: (1) efforts were made to rehabili­
tate tenants where serious complaints were made against 
them, and in most cases no eviction was required; (2) each 
case of a complaint was investigated by a case worker; (3) 
the tenant was informed of the complaint against him; (4) 
the tenant was given an opportunity to state his views as 
to the complaint to the case worker; (5) written reports 
were filed by the case worker; and (6) the tenant was in­
formed of the decision to evict him and was “given all the 
reasons therefor” before legal proceedings were instituted. 
384 F.2d at 154. Moreover, the Court said that the Newark 
Housing Authority substantially complied with the HUD

3 Respondent’s brief, 8-9, 10.



4

circular also involved in the instant ease and admittedly not 
complied with by respondent.4 *

Far from holding that public housing tenants have no 
right to due process safeguards, the Court in the Rcmdell 
case said that the New Jersey public housing procedures, 
which accorded a tenant—in addition to the administrative 
safeguards just described—the right to raise equitable de­
fenses in summary eviction proceedings and to sue the land­
lord in a civil action where the proceedings were unlawful6 
probably would guarantee due process to the tenants. But 
the Court stopped short of saying that a hearing in the 
state summary eviction proceedings would indeed satisfy 
due process requirements for public housing tenants, even 
when preceded by fuller and fairer administrative pro­
cedures than those followed (or not followed) by respond­
ent in the instant case. In remanding the case to the Dis­
trict Court to vacate its order dismissing the action, the 
Third Circuit reasoned that while the New Jersey judicial 
proceedings might provide the tenants with due process 
protections, the federal courts should stand by in case the 
tenants could show that the state proceedings were inade­
quate to protect their constitutional rights.6

4 The Court stated that the HUD circular “ presumably applies” 
to the Newark Housing Authority, 384 F.2d at 154, an obligation 
which respondent in the instant ease seeks to avoid. See Respon­
dent’s brief, 21-30.

6 Compare the North Carolina statutes set forth in the Appendix 
to petitioner’s main brief, 21a-25a. For a much more enlightened 
legislative approach to the problems involved here, see Mass. Gen. 
Laws, Sec. 43, Chap. 121 (enacted July 15, 1968), which prohibits 
termination of public housing tenancies unless for cause and after 
a hearing.

6 Petitioner, of course, urges that this Court go further than the 
holding in Randell. We urge that a hearing in judicial summary 
eviction proceedings cannot meet due process requirements, in the 
context of North Carolina’s procedure for evicting public housing 
tenants, because notice of the reason for eviction and an oppor­



5

Respondent distorts petitioner’s position when it asserts, 
at page 11 of its brief, that in an eviction proceeding the 
Authority must show, in addition to introducing the lease 
and its termination by notice, a “judicially acceptable rea­
son” for termination. This misses the point. We say that 
the Authority has a constitutional obligation to give a ten­
ant prior notice of the reason for eviction, affording the 
tenant an opportunity to contest the validity of this reason, 
if he so desires, either administratively or in court. In 
suggesting that, when it finally recognized that the reason 
for eviction was relevant, the North Carolina Supreme 
Court should have, instead of affirming, remanded this case 
to the trial court, we asked merely that the Authority be 
required to come forward with a reason—then petitioner 
could decide whether or not to contest it.7

Petitioner does not concede that disclosure of the reason 
for eviction in a court hearing would ever satisfy due proc­
ess requirements. We contend that the reason and a fair 
opportunity to contest the reason must be given before the

tunity to contest the reason are required before the decision to 
evict is made. See petitioner’s brief, 48-49. We do not understand 
Bandell to reject this position. As we read the Third Circuit, it 
merely declines to decide whether the New Jersey judicial hearing 
can satisfy due process requirements until it has seen the nature 
of the hearing provided. This may be an appropriate disposition in 
Bandell since the New Jersey judicial proceedings follow an admin­
istrative procedure in which the tenant is given notice and an op­
portunity to be heard before the decision to evict is made. A  similar 
disposition here would be inappropriate.

7 Of course the reason must be “ judicially acceptable” in the 
limited sense that it cannot violate the Constitution or the Housing 
Act and it must withstand judicial scrutiny in light of the statu­
tory purposes of the federal public housing program. See Mr. 
Justice Douglas’ concurring opinion, Thorpe v. Housing Authority, 
386 U.S. 670, 679-80 (1967); see also 42 U.S.C. §1410(g) (2), set 
forth in petitioner’s brief at 3a.



6

decision to evict is made.8 Only in this way can public hous­
ing officials be required to act fairly, with due considera­
tion, and upon adequate information, as the Constitution 
demands. The requirement that a reason be stated is the 
slightest available safeguard to assure that a reason exists. 
And the requirement that the housing authorities, not a 
court, hear the tenant’s reply to the reason stated, is simply 
a recognition that it is the housing authorities, not the court, 
who make the decision to evict. As a practical matter, the 
decision by the housing authorities will often be the only 
decision that an impoverished public housing tenant can 
affect, for he usually will not have resources or knowledge 
of his rights sufficient to take the Authority to court. Even 
if he does, he cannot make a reasoned decision regarding 
the probability of a successful court fight without the reason 
for eviction. In any event, the issue before the summary 
eviction court—even on the relatively broad notion of its 
power to review the Authority which respondent now as­
serts for the first time in this Court, without the slightest 
support in North Carolina law or in the record of proceed­
ings in this case—is still very narrow. The court does not 
sit as a housing development supervisor, to redetermine 
whether or not a tenant ought to be evicted. And it is that 
decision to evict, the critical one for the tenant, which must 
be made conformably to due process guarantees. The very 
breadth of discretion allowed to the Authority in making it 
is a compelling reason to demand administrative procedures 
that will assure it is fairly made in the first instance.

But, should it be determined that effective judicial scru­
tiny of the administrative decision to evict can ever be had 
in summary eviction proceedings, in such a fashion as to 
satisfy the due process clause, certainly, the proceedings

See petitioner’s brief, 48-49.



7

actually had below in petitioner’s case were inadequate to 
meet due process guarantees. Respondent’s blithe assertion, 
at page 10 of its brief, that at the “trial” of a North Carolina 
summary eviction proceeding it would be possible to ques­
tion not only the timeliness of a notice of termination but 
also “its motivation” , is not in accord with either the North 
Carolina statutory scheme for summary eviction or the 
pronouncements of the trial court and the North Carolina 
Supreme Court, when it first considered this case, that the 
reason for termination Avas “immaterial” . Respondent 
points to no decision permitting any inquiry into the reason 
for termination. As set forth in petitioner’s main brief, the 
North Carolina statutes and decisions do not contemplate 
that eviction proceedings may be anything more than what 
they are labeled—“summary” . Section 42-31 of the statute, 
set forth at page 23a of petitioner’s brief, provides that “ If 
the defendant [tenant] by his answer denies any material 
allegation in the oath of the plaintiff, the justice shall hear 
the evidence and give judgment as he shall find the facts to 
be.” Since all the landlord needs allege is that the tenant 
held over after the term had expired and that the landlord 
had demanded surrender of the premises (Section 42-26(1), 
petitioner’s brief, 21a), as the Authority did in this case, 
the tenant could not deny any “material allegation” . The. 
statute thus does not contemplate any inquiry into the rea­
sons for the landlord’s action. Moreover, to assert that 
this petitioner has had an opportunity to have a fair hear­
ing in court (although not administratively) on the reasons 
for her eviction, begs the question whether she is entitled 
to prior notice of the reason and thus an opportunity ade­
quately to prepare for any hearing.

Running persistently through respondent’s brief is the 
theme that petitioner contends that the Constitution re­
quires Congress “to provide housing for all indigent per­



8

sons” ,9 that “all equally eligible indigents have a constitu­
tional right to occupancy” ,10 and that “all members of the 
eligible class shall have low-rent housing within a housing 
authority project.” 11 This, of course, is a red herring. Peti­
tioner does not here claim that the federal or state govern­
ment is obligated to furnish housing to poor people. Peti­
tioner merely contends that once a poor person has been 
found eligible for the limited supply of public housing and 
is actually occupying an apartment, the Constitution comes 
into play to ban arbitrary or discriminatory cancellation of 
public housing benefits. As developed in petitioner’s main 
brief, it does not matter whether the tenant’s interest is 
characterized as a “ right” or a “privilege”—due process 
safeguards apply in either case. See Yan Alstyne, Thei 
Demise of the Right-Privilege Distinction in Constitutional 
Law, 81 Harv. LJEJev. 1439 (1968).

9 Respondent’s brief, 5.
10 Ibid.
11 Respondent’s brief, 24.



9

CONCLUSION

For the foregoing reasons, the judgment below should be
reversed.

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

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

M. C. B urt

2131/2 West Main Street 
Durham, North Carolina

R. M ich ael  F ran k

1238A Carrollburg Place, S.W. 
Washington, D. C.

Attorneys for Petitioner

W illiam  B en n ett  T urner 
E dward V. S parer 
B rian  G lick

Of Counsel



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