Williams v. Housing Authority of the City of Atlanta, Georgia Brief in Support of Motions for Permanent Injunction and Summary

    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