Williams v. Housing Authority of the City of Atlanta, Georgia Brief in Support of Motions for Permanent Injunction and Summary
Public Court Documents
January 1, 1967

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Brief Collection, LDF Court Filings. Williams v. Housing Authority of the City of Atlanta, Georgia Brief in Support of Motions for Permanent Injunction and Summary, 1967. 89243f3c-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9d0fb37e-df82-4ed9-9a64-8fd091a10b6a/williams-v-housing-authority-of-the-city-of-atlanta-georgia-brief-in-support-of-motions-for-permanent-injunction-and-summary. Accessed July 09, 2025.
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IN THE UNITED STATES DISTRICT COURT A j i , ' FOR THE MIDDLE DISTRICT OF GEORGIA ATLANTA DIVISION / / / // f i > f J 1 : /// /••/ / •. // JOSEPHINE WILLIAMS, for herself and for all others similarly situated, Plaintiff, v. HOUSING AUTHORITY OF THE CITY OF ATLANTA, GEORGIA: A. F. SMITH Housing Manager, Perry Homes, and HOMER A.SPRUILL, ‘ Marshall, Civil Court of Fulton County, Georgia .... CIVIL ACTION No.10796 Defendants BRIEF IN SUPPORT OF MOTIONS FOR P ERMANF.NT INJUNCT ION AND SUMMARY JUDGMENT STATEMENT OF FACTS Plaintiff is an indigent public housing tenant in the City of Atlanta, Georgia. Defendant Housing Authortty, a public body created by Georgia Law and financed by the United States, is her landlord. On November 1, 1966, Mr. A. F. Smith, Housing Manager of Jeer building, informed plaintiff by letter that the Authority was terminating her tenancy in thirty (30) days, (Deposition of A.F. Smith, p.17). The Housing Manager at that time neither informed th<$ plaintiff of the reason for the termination nor afforded her a hearing. (Deposition of A.F.Smith, p.54). On November 15, when asked for a reason for the eviction the Manager referred -only to a lease clause perMieLing.ItimLA-AvC^' to evict v/ithout reason on thirty days notice. On December 1,1966, plaintiff tendered her rent to the Housing Authority which returned it with a renewed demand that she vacate the premises. On December 6, 1966, the Housing Authority commenced summary eviction proceedings in the Civil Court of Fulton County pursuant to Georgia Code Ann. §61-301, et. seqc "On December S, 1966, her attorney requested by telephone and telegram a hearing and specification of the grounds for the notice to vacate and the eviction proceedings. (Deposition of A. F. Smith, p.53). Defendant Smith did not reply. Plaintiff tendered to the trial court an affidavit alleging that her term had not expired and filed a motion for leave to proceed in forma pauoeris on the ground that her indigency prevented the filing of the bond with the security required by Georgia Code §61-303. The Georgia summary eviction statute, Ga. Code Ann., §§301-305, provides that the landlord can obtain an eviction by filing an affidavit with a judge of the Superior Court or Justice of the Peace that the tenant has held over or has failed to pay rent; the judge may then issue a dispossessory warrant ordering the Sheriff to dispossess the tenant and his possessions, Ga. Code Ann., §61-302 (1966). The tenant may arrest the proceedings and prevent his eviction by filing a courter-affidavit raising a meritorious defense and tendering a bond with good security payable to the landlord, for the payment of such sum, with costs, as may be recovered against him or. the trial of the case. Ga. Code Ann., §§61-303, 305, 306 (1966). If the tenant is not able to furnish the security bond, he will be 1/ summarily evicted . • J 7 Section 303, Title 61, Ga. Code Ann., sets out the provisions under which the dispossessory warrant proceedings may be arrested: . , "61-303 (5387) Arrest of proceedings-; b y - - t e n a n t - v _ counter-affidavit and bond - the tenant may^arrest the proceeding and prevent the removal of himself ■ and his goods from the land by declaring on oath that his lease or rent has .been expired, and that 3 Plaintiff’s motion for leave to proceed without tendering bond was denied by the Civil Court on February 28, 1967, which simultaneously granted, v/ithout opinion, the Housing Authority’s motion for summary judgment on the / eviction. After the Supreme Court of Georgia and justices of the United States Supreme Court refused to stay the eviction, this suit was begun and this court stayed the eviction to prevent the case from becoming moot pending a resolution of the issues. During the time this Court’s temporary injunction has been in effect, plaintiff has paid rents into the registry of this Court as they have become due. On April 17, 1967, the U.S. Supreme Court decided the case of Thorpe v. Housing Authority of Durham, On June 9, the Georgia Supreme Court affirmed the decision of the Civil Court. By this Court’s order of July 28, 1967, th case has been held in abeyance pending motion by any party to place it on a calendar. ARGUMENT Two distinct issues are raised in this case: (l) the right of plaintiff, and the class of indigent tenants she represents, to proceed in forma pauperis, without provision of bond, in defending against eviction proceedings; and (2) the right of plaintiff to be given reasons why she is being evicted from public housing and the manner in 2/ which reasons must be given. l/continued - he is not holding possession of' the premises over % and beyond his term, or that the rent claimed is not due, or that he does not hold the premises, either by lease, or rent or at will, or by sufferance, or otherwise, from the person who made the affidavit on which the warrant issued, or from anyone under whom he claims the premises, or from anyone claiming the premises under him; provided -ucn toianc ehc.il u the same time tender a bond with good security,- payable to _ the landlord, for the payment of such sum, with costs, as may be recovered against him on the trial of the case. (Act 1827, Coff, 902 Acts 1866, p.25)." Had plaintiff-been allowed to defend her eviction in state court without payment of the bond, the state court would have had to rule on her defenses and would therefore have decided the issues relating to notice and the grounds for eviction. Plaintiff is in this court because the bond statute unconstitutionally denies her the right to make her defenses in state court. As this Court said in its opinion of March 27, 1967, "The foregoing absence of legal redress in the state court requires this Court in many cases, despite its reluctance to do so, to entertain questions which should more properly be decided by the Georgia appellate courts." Unfortunately, despite the stay issued by this court pending appeal to the Georgia Supreme Court of the under lying issues and the decision of the U.S. Supreme Court in Thorpe v. Housing Authority of Durham, nothing has been resolved. The Georgia Supreme Court refused to rule on the constitutionality of the bond statute, erroneously holding that the tenant had been given an opportunity below to present all of her defenses despite §61-303. l / continued - The security referred to above is substantial. Ga. Code Ann., §61-305 (1966) provides: "If the issue specified in [§61-304] shall be determined against the tenant, judgment shall go against him for double the rent reserved or stipulated to be paid .... and such judgment in any case shall also provide for the payment of future double rent until the tenant surrenders possession of the lands or tenements to the landlord after an appeal or otherwise..... " Insurance companies in Georgia have advised that it is necessary for a tenant to put uo a cash collateral for double the rent for- about six (6V months,, as well as pay an unrecoverable bond premium. Williams v. Schaffer, 385 U.S. 1037 at 1038 (Douglas, J., dissenting from % denial of Writ of Certiorari). 2/ A third issue - the right .of plaintiff not to be evicted because she has had illegitimate children - is presented by the record but clearly need not be reached by this Court. It then affirmed the Civil Court's order of summary judgment in favor of the Housing Authority, despite the fact that together with its ruling on the merits in favor of the Housing Authority, the Civil Court had denied the tenant permission to defend the suit. The Georgia Supreme Court justified the Civil Court’s order of summary judgment by the assertion that Miss Williams had not fully denied all of the allegations of the Housing Authority. She did not do so because the Georgia statute prohibits her from making her. defenses without posting bond, and the Civil Court had not (and has not) grafted onto the statute a gloss permitting indigents to proceed without bond. Plaintiff did take a deposition which may have been considered by the trial court, but never fully presented her case because she never had a right to do so. In fact, it is not even clear that the Civil Court considered any part of her case. The Civil Court’s order recited that it was issued "after hearing argument and considering the pleadings and the affidavits filed on behalf of both plaintiff and defendant", but since no opinion was delivered or written it is impossible to construe this language. It is possible that plaintiff’s pleadings were "considered" only insofar as the law (§61-303) permits them to be considered: as one of the two requisite steps for defending an eviction proceeding,. the other one being the posting of bond. The denial of plaintiff’s motion to proceed without bond legally excluded all of her evidence, preventing the Georgia trial and * . appellate courts from considering it as part of the record. Summary judgment for the Housing Authority may have been granted on the basis of Miss Williams' failure to post bend. This interpretation cf what, has happened to plaintiff is supported by the fact that, th^ Civil Court denied, father than declaring moot, Mass-Williams-’ motion for leave” proceed without tendering bond. 6 - At best, plaintiff has had but half a day in court. At worst, she has been denied altogether the right to defend her eviction. The United State Supreme Court's ruling in Thorpe v. Housing Authority of Durham. 386 U.S. 670 (1967) also does not resolve any issue in this case. The Court did not rule on the legality of evicting a tenant from public housing without assigning any reasons or affording a hearing. It remanded the case to the courts of North Carolina for their consideration of the effect of the federal Department of Housing and Urban Development circular recommending that tenants be given reasons for 3/ eviction and an opportunity to reply. But plaintiff is not asking that her eviction be tried on the merits in this federal court. This Court need not decide whether the tenant breached her lease or a valid regulation of the Housing Authority. Plaintiff does pray, however, that this Court require that the State of Georgia grant her due process of lav/ before evicting her, and that the defendant Housing Authority and the defendant Marshall of the Civil Court be enjoined from evicting her pursuant to any proceedings undertaken to date. THE GEORGIA BOND STATUTE VIOLATES THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, ON ITS FACE AND AS APPLIED TO INDIGENT TENANTS. The requirement of a money bond as a precondition of defending a lawsuit is a violation of due process of law. The leading case in Hovev v. Elliot. 167 :U.S.~:409 (1897). The Supreme Court of the District of Columbia had ordered defendants to pay into the registry of the court a sum of money which was at issue in the litigation. The purpose' of the court's action was to protect the plaintiffs against dissipation of the funds during the litigation, since .defendants had already converted the bonds originally at issue into cash. ..... :.. 7__ 27“ See next page When the defendants refused to pay over the money to the court, their answer was striken, and a default judgment entered against them. The United States Supreme Court held that this action violated due process, for it is in the fundamental nature of a court that those brought before it to answer charges be given an opportunity to be heard. The court quoted from its opinion in Windsor v„ McVeigh. 93 U.S. 274 (1876), that an opportunity to be heard in court when attacked in court is an essential and inalienable right: "Wherever one is assailed in his person or his property,^there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determi nation of his rights, and is not entitled to respect in any other tribunal. That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim of the charges made; it is a summons to him to appear and speak, if he has anything to say why the judgment sought should not be rendered. A denial to a party, of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party: appear, and you shall be heard; and, when he has appeared, saying: your appearance shall not be recognized, and you shall not be heard. 93 U.S. at 277, 278." ■ The language in both Hovey and 'Windsor may not cover every case, for there are some occasions when courts may strike a defendant’s answer. The most common instance is the ordinary default judgment. Another example is the power of a federal district court to strike a pleading when a p’lrty has disobeyed a discovery order. Fed. R.Civ.P.37 (b).(iii). But these are instances'in which defendants who fail to meet the condition prescribed thereby obstruct the Circular of February 7, 1967. On remand, the North Carolina Supreme Court held that the circular had no retroactive force. Housing Authority of Durham v._ Thorpe, -110.765 (Sept. 25, 1967). workings of justice,~and'prevent the court from determining the truth. The present case is much more like Hovey; itself; the purpose of requiring bond is to guarantee plaintiffs that they will collect a judgment, if successful. The purpose of the statute may not be absurd* but the state’s interest in protecting plaintiffs must be balanced against, the harm to defendants in tying up their assets during litigation, before any determination has been made that they probably will be liable,and without any evidence, or even any allegation, that if they are not made to pay the bond, they will flee the jurisdiction or otherwise divest themselves of money to pay any judgment. The balance has already been struck by the Supreme Court, when it held in Hovev that the requirement imposed by the court denied due process. Plaintiff recognizes that the Court in Natio.nal Union of Marine Cooks v. Arnold. 348 U.S. 37 (1954), upheld as constitutional a defendants’ bond pending appeal. But the Court did not overrule Hovev. and with good reason. After a defendant has lost a suit, there is much better reason to protect a plaintiff. The trial decision suggests at least that the plaintiff’s case is not frivolous, and it is more-likely after a trial judgment in his favor than beiore trial that a plaintiff will ultimately prevail, since at least some elements which made up the trial judgment (such as demeanor evidence) are unreviewable. Further, after judgment against him at trial, a defendant may have less incentive not to dissipate his assets'. The dissent id Arnold would have extended Hovev to the appeal process, but the majority opinion in no way cuts-' back Hoysy.’s. application, and Hovev squarely governs the present case. The force of Hovev ~ forbidcing a practice of depositing money with the court as a prerequisite to defending a suit - i? no+ diminished bv the fact that states ■ "may require bonds of litigants in some - instaTYSfisy T̂Ke;.- circumstances in which this is constitutionally permissible are all distinguishable from those present here. For example, courts may require a bond of a plaintiff when there is a particular danger of oppression to the defendant should he ultimately prevail. A bond may be required of a stockholder suing derivatively, since there has been a long history of unfounded ’strike’ suits brought for their settlement value. See Cohen v. Beneficial Industrial Loan Coro,. 337 U.S. 541 (1949). And a plaintiff seeking an interlocutory injunction may be required to post security. Ga. Code Ann. §81A-165 (a). 3ut these are instances in which plaintiff’s invocation of the legal process may cause unwarranted harm to a defendant, whereas in the present case, the bond is required of a defendant who is involunt arily brought before the court. Similarly, a plaintiff seeking garnishment must post bond, Ga. Code Ann. §§8-112, 46-102, but the purpose of such bond is also to safeguard the unwilling garnishee. Defendants, too, may be required to post some bonds, but the situations in which such bonds may be required are strictly limited. Bail bonds may be required of criminal defendants, but their purpose is simply to assure the defendant’s presence at trial; unlike the bond required by §61-303, failure to post bond does not preclude the defendant from making his arguments. And the bond required of a defendant wishing to leave to state despite a writ of ne exeat, see Ga. Code Ann. §37-1403, pertains only to def endants who are about to remove their -persons,- or—property. - from Georgia; in the case of tenants willing to pay rent into court during the course of eviction proceedings, no comparable injury to plaintiffs is conceivable. Unlike other bor̂ l situations, the present case is on all fours with Hovey: a requirement that a defendant pay a sum into court for the protection of the plaintiff, before being heard at all, with no showing that the plaintiff is especially threatened by defendant's proceeding without bond. The Georgia requirement, in fact, is if anything far more obnoxious than the bond disapproved in Hovey, for Georgia’s is a penalty bond, which requires the posting of double rent, far more than is necessary to protect a landlord from anything. Though a state design to protect prevailing landlords might reasonably be weighed against the rights of tenants, a policy of punishing persons for defending a lawsuit, regardless of their good faith in doing so, deserves, we submit, no weight at all. Even if there are some circumstances in which courts can require some defendants to post a bond before being allowed to make a defense, a money bond cannot be demanded of an indigent. A requirement such as Georgia’s permits wealthy persons to stay in rental housing and defend eviction proceedings, while denying impoverished persons any opportunity to present to a court even the most airtight defense. It is no answer to say that no significant damage is done. Subsequent suits for wrongful eviction are of little value to the poor, who are shunted around from inadequate dwelling to another at the mercy of landlords. "The poor are relegated to ghettos and are beset by sub standard housing at exorbitant rents. Because of their lack of bargaining power, the poor are made to accept onerous lease terms. Summary eviction proceedings are the order of the day. Default judgments in eviction proceedings are obtained in machinegun rapidity, since the indigent cannot afford counsel to defend. Housing laws often have a built-in bias against the poor. Slumlords h^ve a tight hold on the Nation, "Douglas, J., in Wi ll_iams v. Schaffer. 385 U.S. 1037 (1967) (dissenting from denial of writ of certiorari in a previous case challenging this • which was held moot by the Georgia Supreme Court because the tenant had already been evicted):^ ^ -.7- 11 - It may be that states can constitutionally enact some legislation which creates a greater burden for the poor than for the rich. Arguably, it is not impermissible for the states to charge fees for licenses of various sorts, or to require tuition of students at state university. But Griffin v, Illinois. 351 U.S. 17 (1956)make it clear that justice may not be sold. Surely no one would contend that either a State or the Federal Government could constitutionally provide that defendants unable to pay court costs in advance should be denied the right to plead not guilty or to defend themselves in court. Such a law would make the constitutional promise of a fair trial a worthless thing, Notice, the right to be heard, and the right to counsel would under such circumstances be meaningless promises to the poor ......There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay- the costs in advance..There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. 351 U.S. at 17-19. It is true that Griffin:s prohibition on economic discrimination by the state has been applied up to now chiefly to the criminal process. See Burns v. Ohio. 360 U.S. 252 (1959). Smith v. Bennett. 365 U.S. 708 (1961). But the equal protection clause, upon which Griffin was based, applies as well to matters denominated "civil", and Harper v. Virginia State Board of Elections. 383 U.S. 663 (1966), invalidating the application .of a poll tax to indigents, demonstrates that the exercise of important rrights other than ones relating to the .criminal.process_ . may not constitutionally be conditioned on ability to pay. In fact, the Supreme Court very recently reaffirmed the principle of non-discrimination against the poor in the le^hl process, in language which apparently applies to any civil proceeding: "Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rignts, wnen cased on the financial situation of the defendant, are repugnant to the Constitution". . ... 12 - Roberts v. Lavallee, 36 L.W. 3171, 3172 (October 23, 1967). See also Williams v. Schaffer. 385 U.S. 1037, 1039 (1967) (dissent from denial of writ of certiorari). This is perfectly sensible, since the ability to pay bears no more rational relation to whether one has a bona fide defense to an eviction proceeding than it does to whether he has a bona fide ground for the appeal of a criminal conviction. And it is no exaggeration to say that given the type of housing available to the poor, the consequences of eviction to an indigent family may be as serious as the consequences of a criminal conviction. Under the equal protection clause the relevant constitutional consideration is whether the bond requirement bears a sufficiently reasonable relation to a valid legislative purpose. As a means of discriminating between valid and frivolous defenses,the requirement cannot stand; poor persons are barred from defending no matter how valid their defense, and wealthy persons with frivolous defenses are already subject to the requirement that they make their defense by affidavit. Ga. Code j61-303; the making of a false affidavit pursuant to this requirement constitutes criminal perjury. See Sistrunk v. State of Georgia. 18 Ga. App. 42, 88 S.E. 796 (1916). Somewhat more reasonable is the relationship between a bond requirement and the protection of prevailing landlords from loss of rent during protracted litigation. But if that is the purpose of the law, the means Georgia has adopted sweep too broadly and-stifle the right to defend a lawsuit^-"Thei_breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose"# Shelton v. Tucker, 364 U.S. 479 (i960). See also NAACP v. Alabama, 377 U.S. 288 (1964); Bates v. City of Little Rock. 361 U.S. 516 (1960); McLaughlin v. Florida. 379 U.S. 184 (1964). Many simple devices exist by which the state could safeguard both' the-landlord-s rent during a.̂ suit and-Jtha^.^. tenant’s right to challenge the eviction. For example, the state could simply retain the "summary" nature of summary process, by giving eviction suits priority on the dockets of its courts and affording land lords the right to have their suits heard within a week of service of a notice of eviction. Or Georgia could permit tenants to pay landlords their rent during the pendency of the proceedings, and condition the making of a defense on the continued payment of rent, rather than on the posting of a large bond which indigents cannot raise. In cases of dispute over whether or not rent has been paid, tenants might be reluctant to continue to pay rent to the landlord until the issue was resolved, but the court with jurisdiction over the eviction suit could collect the rents for the landlord or certify payments, Given these and other alternatives, Georgia's present method of protecting land- / lords' rents interferes too severelywith the rights of 4/ indigent tenants to obtain elemental justice . BECAUSE OF THE BOND STATUTE, THIS PLAINTIFF HAS NEVER HAD AN OPPORTUNITY TO DEFEND HER EVICTION IN STATE COURT. The Georgia Supreme Court refused to rule on the constitutionality of the bond statute "since the [plaintiff] has been given an opportunity to present all the defense which she could have presented if she had filed the bond required by Code §61-303." The court’s analysis of the facts was erroneous. As noted above, there was never a time during which plaintiff was affordecT”alright To-defend the eviction. The statute denied her such a right, and the civil court judge confirmed the denial by his order denying her leave to proceed in forma pauperis. Such evidence as she proferred constituted an attempt to show, before being cut off by invocation o-f the bond statute, that her constitutional argument, was not frivolous? it was not a full argument. . V - < i = ~ 4/ See next page Equally important, perhaps, in demonstrating that plaintiff has not had a day in court, is the fact that she was put in the position of having to defend an eviction proceeding without being told the reasons for the eviction. On July 27, 1966, four months before eviction proceedings were begun, defendant Smith discussed with plaintiff the alleged unsuitability of her moral behavior and told her that "while she may be living an exemplary life, I had no way of.knowing". (Deposition of A.F. Smith, p.37). The conversation at this time was vague and not related to legal proceedings. A second meeting between plaintiff and defendant Smith took place on November i5, 1966, after the notice to vacate had been given, but on this occasion Mr. Smith refused to give plaintiff any reason for her eviction, except to say that she was being evicted under Section 9(A) of her lease, which gives the Housing Authority power to evict tenants without 5/ cause on thirty days’ notice ^Deposition of A.F.Smith, pp.47-49). As Judge Tuttle pointed out during the hearing in this case on March 17, 1967, defendants have conceded that the Housing Managers may waive the various grounds for eviction based on misbehavior (Transcript, p.79). Discussions between the Housing Manager and the tenant, four months prior to the notice of termination, cannot be relied on by the Housing Authority as a substitute for a clear statement or reason at the time the Housing Authority acted to terminate the lease. Georgia recognizes the unfairness of requiring indigent litigants to post bond in order to make their-argument; indigents may apply for certiorari in forma pauperis under Ga. Code Ann. §19-203. But Georgia has not seen fit to make this principle meaningful to indigent tenants - they may appeal without bond by certiorari but may not defend the eviction at the trial level. 5/ ^ "Judge Tuttle:.... Mr. Satterfield, do you mean to say that without any instructions or limitations from your office or from any national headquarters, you give to the Managers of these different projects an absolute, unfettered discretion to elect to exercise the thirty days notice and eliminate a tenant if he thinks according to his judgment and discretion that tho hehrn+ oMchh t- be a7 t The Witness: X wouldn’t put it in;.justrthose_worHsv>f-: but I think that's probably true. We have confidence that our Manager is going to use good judgment." (Transcript of hearing, p. 42) 15 - Plaintiff was-not told which of the reasons that had been given to her informally were being relied upon, and which of them waived. Plaintiff's memorandum of lav/ in the civil court attempted to cover briefly each of the possible grounds for r eviction. Plaintiff expected that at the trial, at the latest, she would be informed of the grounds relied upon, so that she could present an exhaustive defense directed at the relevant issues. As a result of the bond requirement, however, plaintiff has still not been afforded an opportunity to respond to her landlord's case. Trial in open court has never been held because the civil court granted the landlord's motion for summary judgment; that motion was granted on the basis of argument which was incomplete because the bond requirement prevented the tenant, both legally and practically, from making all of her defense. Plaintiff still has good cause to complain of Georgia Code §61-303, and is still entitled to a full adjudicative hearing before being put out of her apartment. Furthermore, this suit is a class action on behalf of tenants who are too poor to put up the bond required by Ga. Code §61-303, and the other members of the class that the named plaintiff represents are seriously aggrieved by the statute of which she complains. The Georgia Supreme Court contended that the named plaintiff was able to make a defense despite the bond statute; that she in effect successfully and lawfully evaded the -statute.-~If she_--di-d so (and, as noted above, it appears that she did not), it v/as only by a combination of good fortune and the grace of the Civil Court of Fulton County. This particular named plaintiff, unlike most indigent tenants in Atlanta, v/as fortunate enough to have the assistance of volunteer counsel; her lawyer, although faced with the statute which -seemed to deny him all right to defend the -suit ̂ unless.-hi- - client posted bond, asked permission of the court to be - 16 - allowed minimum discovery to prevent surprise at a trial at which he expected to be able to attack the bond statute itself, among other things; the court, perhaps because this was a novel case raising constitutional issues, granted a discovery order; and the Civil Court stayed the eviction until a deposition could be taken and the case arguedo But the ordinary member of the class that plaintiff represents is not so fortunate, and is simply evicted when no bond is posted. Plaintiff did not manage to "evade" the bond requirement, but even if she did, the member of her class have neither the opportunity nor the right to do so. THE NAMED PLAINTIFF SHOULD BE PROTECTED BY AN ORDER RESTRAINING HER EVICTION UNTIL IT SHALL HAVE BEEN DETERMINED, PURSUANT TO DUE PROCESS OF LAW, THAT SHE IS NOT ENTITLED TO OCCUPY THE PREMISES An order restraining further enforcement of Ga. Code §61-303 will protect the named plaintiff as well as members of her class from future eviction proceedings in violation of due process and equal protection, but it will pot suffice to prevent injustice to Miss Williams. A notice to vacate was served upon her last December, and the state has afforded her, in form though not in substance, a judicial determination of her claims. She may be evicted as soon as the temporary restraining order now in effect is dissolved. Minimal protection for her right to a full and fair proceeding necessitates that this court restrain defendant Housing Authority from evicting_her_until she is_ given a determination of her claims in a manner comporting with the requirements of due process. This court need not require Georgia to adopt any particular form of process, so lor̂ g as constitutional requirements are met. Since the determination of whether or not plaintiff may be evicted involves the adjudicative process, plaintiff is entitled to • "an opportunity to know the_ claims ot tne opposing party, .« to present evidence to support [her] contentions .... and Seeto cross^e.xamine witnesses __for the other side". Hornsby v. Allen. 326 F. 2d 605, 608 (5th Cir. 1964). "The deciding authority may not base its decision on evidence which has not been specifically brought before it.... ; the findings must conform to the evidence adduced at the hearing, [and the adjudicative decision] cannot be upheld merely because findings might have been made and considera tions disclosed which would justify its order". Ibid. Thus, Georgia may not wish to grant plaintiff a full trial in gpurt. Since plaintiff’s landlord is a public body, Georgia may satisfy the requisites of due process by affording her an administrative hearing conducted by a neutral officer of the Housing Authority, but such a hearing must contain the elements enumerated above, and the state must provide some judicial review of alleged errors of law committed by the administrative tribunal. On the other hand, if the state wishes to provide a judicial forum for all tenants, in public and private housing, who wish to contest evictions, it is submitted that the constitutional standards imposed on the judicial adjudication are no less strict than those which Hornsby imposes upon administrative bodies. CONCLUSION For the foregoing reasons, plaintiff and the members of the class she represents should be granted the relief requested in their motion for permanent injunction. - - Respectfu11 v^submltled, - —_U- HCWARD MOORE," JR. . 859k> Hunter Street Atlanta, Ge’orgia 30314 JACK GREENBERG ' • CHARLES H.'JONES, JR. CHARLES S. RALSTON MICHAEL DAVIDSON • 10 Columbus Circle New .York, New York 10019 _ . __ Attorneys for Plaintiff