Memorandum from Pamela Karlan to Penda Hair Re Perkins v. Clinton

    I n  t h e

(Emtrt nt the
October T erm, 1967 

No. /.siP.3...

J oyce C. T horpe,

- v . —
Petitioner,

H ousing A uthority of the 
City of Durham .

PETITION FOR WHIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

J ack Greenberg 
James M. Nabrit, III 
Charles Stephen R alston 
Charles H. J ones, Jr.

10 Columbus Circle 
New York, New York 10019

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

R. Michael F rank
1238A Carrolburg Place, S.W. 
Washington, D.C.

Attorneys for Petitioner
Of Counsel:

B rian Glick 
E dward V. Sparer



I N D E X

Opinions Below .................................................................  1

Jurisdiction .......................................................................  2

Questions Presented ........................................................ 2

Constitutional and Statutory Provisions Involved ..... 3

Statement ........................................................................... ^

How the Federal Questions Were Raised and Decided 
Below ............................................................................. 8

R easons foe Granting the W rit 

Introductory
The Important Federal Questions Raised by Peti­
tioner Have Not Been Resolved by the Court Beloiv 
or by Federal Regulations as Interpreted by the 
Responsible Agency ..................................................  10

I. Conflict Between the Decisions of This Court and 
the Judgment Below as to the Right to Notice 
and a Hearing Necessitates Resolution of the 
Issue by This Court................................................  13

II. Certiorari Should Be Granted to Decide What 
Procedures Are Required, Under the First and 
Fourteenth Amendments, to Protect Associa- 
tional Activities ......................................................  18

III. Certiorari Should Be Granted to Decide the 
Question of the Effect of the February 7, 1967, 
HUD Circular ............................................. -........... 22

PAGE



11

A. The Holding of the North Carolina Supreme 
Court That the HUD Circular Did Not Apply 
in This Case Conflicts With Prior Decisions
of This Court ....................................................  22

B, Certiorari Should Be Granted to Resolve Im­
portant Questions Left Open by the Prior 
Decision of This Court Concerning the Legal 
Effect of the Circular and Whether It Binds 
Local Housing Authorities ...............................  25

Conclusion ...............................................................................  27

T able op Cases

Bowles v. Strickland, 151 F.2d 419 (5th Cir. 1945) ....... 24
Bruner v. United States, 343 U.S. 112 .......................... 24

Congress of Racial Equality v. Clinton, 346 F.2d 911 
(5th Cir. 1964) .............................................................  24

Culbertson v. Rogers, 242 N.C. 622, 89 S.E.2d 299 
(1955) ...................................................................     19

Dixon v. Alabama State Board of Education, 294 F.2d 
150 (5th Cir. 1961), cert, denied, 368 U.S. 930 
(1961) ............  14,17

Ex Parte Collett, 337 U.S. 55 .......................................... 24

Flanner v. St. Joseph Home for the Blind Sisters of 
St. Joseph of Newark, 227 N.C. 342, 42 S.E.2d 225 
(1947) ...........     19

Goldsmith v. United States Board of Tax Appeals, 270 
U.S. 117

PAGE

13



Ill

PAGE

Gonzales v. Freeman, 334 F.2d 570 (D.C. Cir. 1964) ..... 13
Greene v. McElroy, 360 U.S. 474 ................................ 13, 24
Greene v. United States, 376 U.S. 149 .........................23, 24
Gurganus v. Guaranty Bank & Trust Co., 246 N.C. 655,

100 S.E.2d 81 (1957) .................. .................................. 19

Hamm v. City of Rock Hill, 379 U.S. 306 ...................... 23
H. L. Coble Construction Co. v. Housing Authority of 

the City of Durham, 244 N.C. 261, 93 S.E.2d 98 (1956) 19
Hoadley v. San Francisco, 94 U.S. 4 .............................  24
Holt v. Richmond Redevelopment and Housing Author­

ity, 266 F. Supp. 397 (E.D. Va. 1966).........-...............- 21
Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) ...........14,17

Joint Anti-Fascist Refugee Com. v. McGrath, 341 U.S.
123 ..................................................................................  22

Jordan v. American Eagle Fire Insurance Co., 169 F.2d 
281 (D.C. Cir. 1948) ....................................................15,16

Keyishian v. Board of Regents of the University of the
State of N.Y., 385 U.S. 589 .....................................  13

Londoner v. Denver, 210 U.S. 373 .................................  13

Morgan v. United States, 304 U.S. 1 ..................... .......  13

Orr v. United States, 174 F.2d 577 (2nd Cir. 1949) ..... 24

Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965) ..........  24
Rios v. Hackney,------F. Supp.-------  (N.D. Tex., Nov.

30, 1967) ........... ............................................................. 14
Schoen v. Mountain Producers Corporation, 170 F.2d

707 (3rd Cir. 1948) ............ ....................... ...................  24
Shelton v. Tucker, 364 U.S. 479 ..................................... 13
Sherbert v. Verner, 374 U.S. 398 ................................. 13



IV

Slochower v. Board of Higher Education, 350 U.S. 351 13

PAGE

Southern R. Co. v. Virginia, 290 U.S. 190...................... 13
Speiser v. Randall, 357 IT . S. 513................ ....................  13

Wiemann v. Updegraff, 344 U.S. 183.............................  13
Willner v. Committee on Character and Fitness, 373

U.S. 9 6 ..................................................................... 13,14,16
Wong Yang Sung v. McGrath, 339 U.S. 3 3 ..................  13

S ta t u t e s

42 U.S.C. §1401 ................................................................  12
42 U.S.C. §1402 ................................................................. 12
42 U.S.C. §1408 ................................................................. 25

42 U.S.C. §1415(7) ...........................................................  12
Department of Housing and Urban Development Act,

79 Stat. 667 (Sept. 9, 1965) ..........................................  25
The United States Housing Act of 1937, §8, 50 Stat.

891 .................................................................................12,25
Gen. Stat. of North Carolina, §46-26 ................................. 18
Gen. Stat. of North Carolina, §§157-2, 157-4, 157-9 ....... 12

O t h e r  A u t h o r it ie s

Hearings, Subcommittee on Executive Reorganization, 
Senate Committee on Government Operations, 89th 
Cong., 2d Sess., August 15 and 16, 1966, Part 1, p.
230 (U.S. Gov’t Printing Office, Wash., 1966) ..........  12

Housing Authority Management Handbook..................  17

Low Rent Housing Management Manual................... . 26
Note, Withdrawal of Public Welfare: The Right to a 

Prior Rearing, 76 Yale L.J. 1234 (1967) ..................  14



I n  t h e

(Emirt of %  Imtpii 6>tufo>&
O ctober  T e r m , 1967 

No.............

J oyce  C . T h o r p e ,
Petitioner,

— v.—

H o u sin g  A u t h o r it y  oe t h e  
C it y  op D u r h a m .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of North Carolina 
entered in this case on October 11, 1967.

Opinions Below

The opinion of the Supreme Court of North Carolina 
is reported at 157 S.E.2d 147 and is set forth in Appendix I, 
infra, pp. la-5a.

The findings of fact and conclusions of law of the 
Superior Court of Durham County are unreported and 
are set forth in Appendix III, infra, pp. 10a-15a. The origi­
nal decision of the Supreme Court of North Carolina is 
reported at 267 N.C. 431, 148 S.E.2d 290 (1966), and is 
set forth in Appendix II, infra, pp. 6a-9a. The opinion of 
this Court vacating that decision is reported at 386 U.S. 
670 (1967).



2

Jurisdiction

The judgment of the Supreme Court of North Carolina 
was entered on October 11, 1967. The jurisdiction of this 
Court is invoked pursuant to 28 U.S.C. §1257(3), petitioner 
having asserted below and asserting here deprivation of 
rights secured by the Constitution and statutes of the 
United States.

Questions Presented

Petitioner and her children have been tenants in a low- 
income housing project constructed with federal and state 
funds and administered by the Housing Authority of the 
City of Durham, an agency of the State of North Carolina, 
pursuant to federal and state laws and regulations. The 
day after petitioner was elected president of a tenants’ 
organization in the project, the Housing Authority gave 
notice that it was cancelling her lease. Petitioner requested 
that the Housing Authority tell her the reasons for her 
eviction and give her a hearing. The Housing Authority 
refused to give her a reason or a hearing but initiated 
this summary ejectment action in a state court and ob­
tained an order that petitioner be removed from the 
premises.

1. Under these circumstances, was petitioner denied 
rights guaranteed by the First Amendment and by the 
due process clauses of the Fourteenth and Fifth Amend­
ments to the Constitution of the United States?

2. Was petitioner entitled to notice of the reasons for 
her eviction and a hearing on those reasons by virtue of 
a directive promulgated on February 7, 1967, by the United 
States Department of Housing and Urban Development?



3

This case involves the First, Fifth and Fourteenth 
Amendments to the Constitution of the United States.

This case also involves the United States Housing Act, 
as amended, 42 U.S.C. §1401 et seq. The following por­
tions of the Housing Act are set forth in Appendix IY, 
infra, pp. 16a-18a:

42 U.S.C. §1401 
42 U.S.C. §1404a 
42 U.S.C. §1408

This case also involves directives promulgated by the 
United States Department of Housing and Urban Develop­
ment under authority of the above statutes, and which are 
set forth in Appendix VII, infra, pp. 26a-33a.

This case also involves the North Carolina “ Housing 
Authorities Law,” Gen. Stats, of North Carolina, §157-1 
et seq. The following portions of the “Housing Authorities 
Law” are set forth in Appendix V, infra, pp. 19a-20a:

N.C.G.S. §157-2 
N.C.G.S. §157-23

The case also involves North Carolina statutes relating 
to summary ejectment proceedings, Gen. Stats, of North 
Carolina, §42-26 et seq. The following sections are set 
forth in Appendix VI, infra, pp. 21a-25a.

N.C.G.S. §42-26 
N.C.G.S. §42-28 
N.C.G.S. §42-29 
N.C.G.S. §42-30 
N.C.G.S. §42-31 
N.C.G.S. §42-32 
N.C.G.S. §42-34

C on stitu tion al and  Statutory P rovision s In vo lv ed



4

Statement

On November 11, 1964, petitioner (and her children) be­
came tenants in McDougald Terrace, a federally assisted, 
low-rent public housing project owned and operated by 
the Housing Authority of the City of Durham, an agency 
of the State of North Carolina.1 The lease between peti­
tioner and the Authority provides for a tenancy from 
month to month and provides that it will be automatically 
renewed thereafter for successive terms of one month, as 
long as there are no changes in income or family composi­
tion and no violations of the lease terms. It further states 
that the Authority “may terminate this lease by giving to 
the Tenant notice in writing of such termination fifteen 
. . . days prior to the last day of the term,” (R. 19) and 
further that the lease shall terminate “automatically” at 
the Authority’s option if the tenant misrepresents a ma­
terial fact in his application or if he fails to comply with 
any of the lease’s provisions (R. 23).2 See, 386 U.S. at 
674-75.

1 As stated in the concurring opinion of Mr. Justice Douglas when 
this case was first before this Court:

The Housing Authority was established under state law and is “a pub­
lic body and a body corporate and politic, exercising public powers.”  
N.C. Gen. Stat. §157-9 (1964). It has “ all the powers necessary 
or convenient to carry out and effectuate the purposes and provi­
sions” of the North Carolina Housing Authority law (N.C. Gen. 
Stat. §157-1 et seq. (1964)), including the powers “ to manage as 
agent of any city or municipality . . . any housing project con­
structed or owned by such city” and “'to act as agent for the federal 
government in connection with the acquisition, construction, opera­
tion and/or management of a housing project.”  §157-9 (1964). 386 
U.S. at 674.

2 Throughout this petition, record citations are to the certified record 
from the North Carolina Supreme Court in the original appeal in this 
case. Although one copy is in file in this Court in Thorpe v. Housing 
Authority, Oct. Term 1966, No, 712, petitioner has filed another copy 
with this petition. In addition an addendum to the record, consisting 
almost entirely o f the court below’s decision and judgment on remand, 
has been filed.



All apparently went well for eight months; the record 
reveals no complaints from the manager of the hous­
ing project. On August 10, 1965, petitioner was elected 
president of the Parents’ Club, a group composed of 
tenants of the housing project. On August 11, 1965, 
the Housing Authority’s Executive Director delivered 
a notice that petitioner’s lease would be canceled ef­
fective August 31, at which time she would have to 
vacate the premises. No reasons were given for the 
sudden cancellation. The Authority merely referred 
to the provision of the lease stating that management 
may terminate the lease by giving the tenant notice 15 
days prior to the last day of the term. 386 TT.S. at 675.

Athough petitioner requested to be told the reasons for 
eviction and to be given a hearing to determine the rea­
sons, the Authority denied her requests. For that reason 
she refused to vacate. The Authority then brought a sum­
mary ejectment action in justice of the peace court where 
a judgment of eviction was obtained. On appeal, the 
judgment was affirmed by the Superior Court of Durham 
County.

In the Superior Court, it was stipulated that the action 
would be heard by the judge without a jury and that the 
judge could hear and determine the case by finding facts 
based on stipulations and affidavits, and by drawing there­
from conclusions of law. It was further stipulated that 
if the director of the Authority were testifying, he would 
testify that “whatever reason there may have been, if any, 
for giving notice” to petitioner, it was not because of her 
election to the presidency of or participation in the tenants’ 
group (E. 13-14). Mrs. Thorpe in her affidavit, on the

5

As Mr. Justice Douglas stated in his concurring opinion
in the prior appeal in this case:



6

The Superior Court made a finding of fact that peti­
tioner was given notice to vacate not because of her ac­
tivities in the tenants’ organization (App. Ill, p. 13a). It 
further found that no reason was given to the defendant 
for terminating her lease and that no hearing was con­
ducted although one had been requested. The court con­
cluded as a matter of law that the Housing Authority had 
acted in conformity with the terms of the lease and did 
not owe a duty to give petitioner a reason for the termina­
tion or to hold a hearing thereon (App. Ill, p. 14a).

On appeal to the Supreme Court of North Carolina, 
the judgment was affirmed on the ground that the Au­
thority was the owner of the premises and had terminated 
the tenancy in accord with the terms of the lease. There­
fore, “it is immaterial what may have been the reason 
for the lessor’s unwillingness to continue the relationship 
of landlord and tenant after the expiration of the term 
as provided in the lease,” 267 N.C. 431, 433, 148 S.E.2d 
290, 292 (App. II, p. 9a).

Petitioner filed in this Court a petition for writ of cer­
tiorari, which was granted December 5, 1966. While the 
case was pending in this Court, the United States Depart­
ment of Housing and Urban Development, on February 7, 
1967, promulgated a circular dealing with the duty of local 
housing authorities to inform tenants of the reasons for 
any eviction and to give tenants an opportunity to make 
a reply or explanation. (See Appendix YU, infra, pp. 26a- 
27a.) On April 17, 1967, this Court rendered a per curiam 
decision remanding this case to the Supreme Court for 
reconsideration in light of the circular. Thorpe v. Housing 
Authority, 386 U.S. 670 (1967). Subsequently, in October,

other hand, alleged that she was informed and believed
that she was evicted because of her organizing activities
(R. 15).



1967, the circular was incorporated in the Department’s 
“Low-Rent Housing Management Manual,” the provisions 
of which, under Department regulations, are binding on 
local authorities (see Appendix VII, infra, p. 33a).

On October 11, 1967, the state Supreme Court entered 
its decision on remand, and again found no error in the 
order of eviction of petitioner. In its opinion, the court 
below again relied on the provision of the lease which 
allowed the Housing Authority to terminate the lease on 
fifteen days notice. As to petitioner’s claim that she had 
been evicted because of her election as president of a 
tenants’ organization, the court said:

The timing of the club election and the service of 
the ejection notice might arouse suspicion if the ac­
tivities of the club were shown to have been hostile 
to the Authority. Without such showing and in the 
face of positive testimony of the Manager to the 
contrary, the charge is based altogether on coincidence. 
The timing may arouse suspicion, but to the judicial 
mind, suspicion is never a proper substitute for evi­
dence (App. I, p. 3a).

As to the applicability of the February 7, 1967 HUD 
circular, the issue to be determined under this Court’s 
remand order, the North Carolina Supreme Court held 
that the circular was inapplicable because it was issued 
some 17 months after the notice of eviction to petitioner 
(App. I, pp. 4a, 5a).

Petitioner continues to remain in the housing project 
under a stay of the eviction order granted by the court 
below pending disposition of this petition for certiorari.

7



How the Federal Questions Were 
Raised and Decided Below

The question of whether the eviction without cause, ex­
planation, or hearing, of petitioner and her children, 
tenants in a low-income housing project supported by 
federal funds and administered by the Authority pur­
suant to federal regulations, violated rights guaranteed to 
petitioner and her children by the federal Constitution and 
statutes, was raised at the trials in the Justice of the 
Peace and Superior Courts by affidavit and motion to 
quash the eviction proceeding (R. 14-18).3

Following the entry of judgment by the Superior Court, 
petitioner made exceptions to the court’s judgment (R. 28- 
30), and gave notice of appeal (R. 31). Among the assign­
ments of error argued to the North Carolina Supreme 
Court was the following:

4. For that the Court erred in finding as a matter 
of law that the Housing Authority of the City of 
Durham did not owe duty to communicate or give 
the defendant any reason for its termination of her 
lease, nor was it required or had any duty to hold a 
hearing on said subject. As shown by E xception # 4 .  
(R. 32).

In its original opinion, the Supreme Court held that, 
“It is immaterial what may have been the reason for the 
lessor’s unwillingness to continue the relationship of land­
lord and tenant after the expiration of the term as pro­
vided in the lease.” 267 N.C. at 433, 148 S.E.2d at 292

3 The Motion to Quash stated, in part:
That the tenant in a Public Housing Project has a right to her 

apartment and a deprivation of that right without a hearing violates 
due process of law as guaranteed by the 14th Amendment (E. 17).



9

(App. II, p. 9a). In finding that the Authority was en­
titled to bring summary ejection proceedings against peti­
tioner without granting a hearing or stating its reasons 
for eviction, the Supreme Court of North Carolina neces­
sarily rejected petitioner’s federal claims.

On remand from the order of this Court, all the federal 
questions previously presented, together with the issue of 
the effect of the HUD circular, were fully briefed and 
argued to the North Carolina Supreme Court. As to the 
constitutional claims, the North Carolina Supreme Court 
held that:

(1) The procedure of notifying petitioner of the expira­
tion of her lease without explanation followed the terms 
of the lease and was therefore proper ; 157 S.E.2d 147, 150 
(App. I, p. 5a);

(2) Petitioner had failed to prove that she was being- 
evicted because of her being elected president of the tenants’ 
organization. 157 S.E.2d at 149 (App. I, pp. 2a-3a).

As to the question of the circular, the court held that it 
was inapplicable in this case since promulgated after the 
notice to vacate and after the state courts had issued 
orders of eviction. 157 S.E.2d at 149-50 (App. I, pp. 4a-5a).



10

REASONS FOR GRANTING THE WRIT 

Introductory

The Important Federal Questions Raised by Peti­
tioner Have Not Been Resolved by the Court Below or 
by Federal Regulations as Interpreted by the Respon­
sible Agency.

Once before this Court granted certiorari in this case to 
consider the serious constitutional issues raised by the 
petitioner. 385 U.8. 967. As stated in the subsequent deci- 
cision of the Court:

The petitioner contends that she was constitutionally 
entitled to notice setting forth the reasons for the 
termination of her lease, and a hearing thereon. She 
also suggests that her eviction was invalid because it 
allegedly was based on her participation in constitu­
tionally protected associational activities. 386 U.8. 670, 
671.4

At that time the Court found it “unnecessary to reach 
the large issues stirred by these claims” (386 U.S. at 671-72) 
because a new circular issued by the United States Depart­
ment of Housing and Urban Development directed that “no 
tenant be given notice to vacate without being told by the 
Local Authority, in a private conference or other appro­
priate manner, the reasons for the eviction, and given an

i Mr. Justice Douglas, in his concurring opinion, stated the issues pre­
sented thusly:

First, is whether a tenant in a publicly assisted housing project 
operated by a state agency can be evicted tor any reason or no 
reason at all. The second is whether a tenant in such a housing 
project can be evicted for the exercise of a First Amendment right. 
386 U.S. at 677.



11

opportunity to make such reply or explanation as he may 
wish.” 5 The Court expressly declined to decide “the legal 
effect of the circular, the extent to which it binds local 
housing authorities, and whether it is in fact applicable 
to the petitioner.” 386 U.S. at 673 n. 4. The case was re­
manded to the Supreme Court of North Carolina “ for such 
further proceedings as may be appropriate” in light of 
the federal directive.

On remand, the North Carolina court decided only that 
the directive does not apply to the petitioner and reaffirmed 
the judgment of eviction. The court basically adhered to 
its earlier position that the Housing Authority was free 
to evict under the terms of the lease without giving any 
reason or providing a hearing. With regard to the cir­
cular, the court decided only one of the issues posed by 
this Court, its applicability, and left undecided those of 
its legal effect and binding authority. Thus, the court’s 
decision and, as will be discussed more fully infra, a state­
ment by the official over whose signature the federal direc­
tive issued6 make it clear that there has been no resolution 
of the basic question of the right of tenants of public hous­
ing to a fair hearing on the reasons for eviction. The 
judgment below also raises important issues regarding 
constitutional protection of the associational activities of

6 The full text of the circular is set forth in App. Y II, infra, pp. 26a- 
27a, and at 386 U.S. 672-73, n. 3.

6 An inquiry seeking the government’s views on a number of questions 
concerning the circular was made by one of the attorneys for petitioner 
of Mr. Don Hummel, Assistant Secretary for Renewal and Housing Assist­
ance of the Department of Housing and Urban Development, for the 
purpose o f preparing petitioner’s brief on remand to the Supreme Court 
of North Carolina. The correspondence was printed as an appendix to 
the brief in that court. It is set out in full in Appendix V III to this 
petition, infra, at 34a-42a, and includes the letter of inquiry from Charles 
Stephen Ralston, one of petitioner’s attorneys, the reply of Mr. Hummel, 
and the reply of Mr. Joseph Burstein, chief counsel to the Housing 
Assistance Administration.



12

tenants of public bousing. Finally, there remain to be re­
solved issues regarding the application and legal effect of 
the February 7, 1967 HUD circular.

These questions are of great national importance. Nearly 
2,000 local housing authorities operate federally-assisted 
low-rent housing projects throughout the country. Ap­
proximately one million persons are tenants in these pro­
jects.7 Almost all of these tenants live under leases sub­
stantially identical to the one involved in this case and 
are subject to eviction under procedures such as those at 
issue here. Because of their poverty, eviction means to 
them being barred from the only decent, safe, and sani­
tary housing they can afford.8 Unless the questions pre­
sented herein are resolved by this Court, hundreds of 
thousands of persons will continue to be subject to the 
arbitrary and absolute power of those administering this 
important program of public benefits.

7 As o f March 31, 1966, there were 1,883 local housing authorities ad­
ministering 610,000 housing units. Five hundred ninety-six thousand 
(596,000) of these units were occupied at that time. See, Exhibit 20, 
Department of Housing and Urban Development, Summary: Housing 
and Urban Development: 1961-66, Hearings, Subcommittee on Executive 
Reorganization, Senate Committee on Government Operations, 89th Cong., 
2d Sess., August 15 and 16, 1966, Part 1, p. 230 (U.S. Gov’t Printing 
Office, Wash., 1966).

8 The United States Housing Act of 1937 and the North Carolina Hous­
ing Authorities Act, under which the Housing Authority herein has been 
established and financed, both make it clear that the expenditure of funds 
for publicly owned housing is required because of the inability of the 
private sector to provide decent, safe, and sanitary housing for low-income 
families. 42 U.S.C. §§1401, 1402; 1415(7) (App. IV, infra, p. 16a); 
§§157-2, 157-4, 157-9, Gen. Stat. of North Carolina (App. V, infra, 
pp. 19a-20a).



13

I.

Conflict Between the Decisions o f This Court and 
the Judgment Below as to the Right to Notice and a 
Hearing Necessitates Resolution o f the Issue by This 
Court.

As pointed out supra, the court below adhered to its 
earlier decision that the Housing Authority was not re­
quired to give its reasons, or a hearing thereon, for 
terminating the lease. Petitioner urges that this result 
leaves unresolved a conflict with decisions of this Court. 
The decisions of this Court make it clear that due process 
requires that a hearing be held to adjudicate facts and 
law whenever significant interests of the individual are at 
stake.9 This Court and other federal courts have con­
sistently held that no matter how certain interests are 
categorized,10 a hearing is necessary to determine whether 
they may be terminated by the government.11 Only a due

9 The basic requirement for a hearing is long established. See, e.g., 
Londoner v. Denver, 210 U.S. 373 (1908) ; Wong Tang Sung v. McGrath, 
339 U.S. 33 (1950); Southern R. Co. v. Virginia, 290 U.S. 190 (1933); 
Morgan v. United States, 304 U.S. 1 (1938).

10 Any verbal distinction between “ rights” and “privileges”  may not 
be allowed to impose unconstitutional conditions upon the receipt of 
“ benefits”  or “ privileges.”  See, e.g., Sherhert v. Verner, 374 U.S. 398 
(1963); Speiser v. Bandall, 357 U.S. 513 (1958); Shelton v. Tucker, 364 
U.S. 479 (1960); Wiemann v. Updegraff, 344 U.S. 183 (1952); Keyishian 
v. Board of Regents of the University of the State of N.Y., 385 U.S. 589 
(1967).

11 Thus a hearing is necessary before an individual may be denied 
admittance to the state bar (Willner v. Committee on Character and Fit­
ness, 373 U.S. 96) ; before a person may be denied the privilege of 
practicing before the Board of Tax Appeals ( Goldsmith v. United States 
Board of Tax Appeals, 270 U.S. 117) ; before security clearance may be 
revoked ( Greene v. McElroy, 360 U.S. 474) ; before a state college pro­
fessor may be dismissed for invoking the privilege against self-incrimina- 
tion (Slochower v. Board of Higher Education, 350 U-S. 351) ; before 
individuals may be disbarred from receiving government contracts ( Gon-



14

The requirement that a hearing, whether before the 
agency or before a court, be held to protect interests of 
the affected individual is more than a requirement for 
formal proceedings. It is necessary that the individual be 
given a realistic opportunity to confront and come to grips 
with the reasons for adverse action by the government. 
As this Court stated in Willner v. Committee on Character 
and Fitness, 373 U.S. 96:

It does not appear from the record that either the 
Committee or the Appellate Division, at any stage in 
these proceedings, ever apprised petitioner of it's 
reasons for failing to be convinced of his good charac­
ter. Petitioner was clearly entitled to notice of and 
a hearing on the grounds for his rejection either be­
fore the Committee or before the Appellate Division. 
373 U.S. at 105 (emphasis added).12

process hearing can insure to the individual recourse from
arbitrary government action which may be inconsistent
with the Constitution or other applicable law.

zales v. Freeman, 334 F.2d 570 (D.C. Cir. 1964)) ; before a student may 
be expelled from a state university (Dixon v. Alabama State Board of 
Education, 294 F.2d 150 (5th Cir. 1961) ; cert, denied, 368 U.S. 930 
(1961)); and before a liquor license may be denied (Hornsby v. Allen,
326 F.2d 605 (5th Cir. 1964)). And, in Bios v. H ackney,------  F. Supp.
------ (N.D. Tex., Nov. 30, 1967), a federal district court lias held that a
welfare recipient must be returned to the rolls because the requirements 
of due process had not been complied with in the hearing and decision 
making process that reviewed the cutoff. The court found that: (1) no 
evidence supporting the agency’s action had been adduced; (2) the 
agency’s action had been arbitrary and capricious; and (3) reliance had 
been put entirely on hearsay evidence so that there had been no oppor­
tunity to cross-examine the persons making charges. And see, Note, 
Withdrawal o f Public W elfare: The Bight to a Prior Hearing, 76 Yale 
L.J. 1234 (1967).

12 That the concept of a due process hearing includes, at the least, the 
right to subject the rationale of agency action to scrutiny was recognized



15

In this case Mrs. Thorpe never did receive a hearing on 
the issue involved: the reasons for the Housing Authority’s 
action and the evidence to support such reasons. Nor does 
it appear that the HUH circular would entitle her to such 
a hearing even if it were held applicable to her pending 
case.

It was stipulated by plaintiffs and found as fact by the 
Superior Court that no administrative hearing was afforded 
(E. 12, 5-6, App. Ill, infra, p. 13a). The only non-admin- 
istrative procedure which might appear to be a hearing 
in this (or similar cases) was the summary eviction pro­
ceedings instituted in state court. Certainly proceedings 
in open court, held before the governmental action in issue 
became effective, might satisfy the requirements of due 
process. However, it is essential that court proceedings, 
like administrative hearings, address themselves to the 
actions of government which are being challenged if they 
are to afford the requisite hearing.

Here, following typical practice throughout the country, 
the Housing Authority did not allege and prove cause for 
eviction. The Authority moved to evict Mrs. Thorpe on 
the sole basis of lease provisions authorizing termination 
without cause by means of 15 days notice. In court, the 
Authority was required to prove only the propriety of its 
notice. Even if the trial court had allowed Mrs. Thorpe 
to attempt to prove that the Authority in fact terminated 
her lease for an impermissible reason, such a procedure

before Willner. The Court o f Appeals for the District of Columbia so 
stated in the leading' case of Jordan v. American Eagle Fire Insurance 
Go., 169 F.2d 281 (D.C. Cir. 1948). The Court said:

It is clear that the hearing afforded by the Superintendent was not 
valid as a quasi-judicial hearing . . . Neither the basis nor the proc­
esses of the Superintendent’s order were explored, because they were 
not revealed except in the most summary fashion.



16

would have been constitutionally inadequate.13 It is clearly 
insufficient to force a tenant to speculate as to the agency’s 
reasons. Due process requires a full inquiry into the real 
reasons. Willner v. Committee on Character and Fitness, 
supra; Jordan v. American Eagle Fire Ins. Co., 169 F.2d 
281 (D.C. Cir. 1948).

Nor are these questions as to the requirements for either 
an administrative or a judicial hearing resolved by the 
HUD circular standing alone, without interpretation by 
this Court. The circular speaks only in terms of a private 
conference, or other appropriate procedure, at which the 
reasons are to be given and the tenant allowed to reply. 
(App. VII, infra, p. 26a.) The Assistant Secretary for 
Renewal and Housing Assistance stated in his letter to 
counsel for petitioner that the circular requires only “an 
informal conference” between the tenant and the housing- 
manager.14 15 Asked about a more formal hearing involving 
the minimal requisites of due process, Mr. Hummel stated 
that such a procedure, although it would be approved by 
HUD, was not required or contemplated. Whether such a 
proceeding is constitutionally required, he added, “ is one 
of the issues to be decided by the Thorpe case.” 16

Similarly, there is no indication that the HUD circular 
was intended to, or did change, the nature of the summary 
eviction proceedings afforded public housing tenants in 
North Carolina or elsewhere. The circular does not pro­
hibit the use of month-to-month leases under which the 
Authority may obtain a judgment of eviction on the sole

13 In point II, infra, the state trial court proceedings and the decisions 
of the North Carolina Supreme Court are discussed in more detail as they 
relate specifically to petitioner’s First Amendment claims.

14 Letter of July 25, 1967, from Mr. Don Hummel to Charles Stephen 
Ralston, App. V III, infra, p. 39a.

15 Id., at 40a.



17

basis of proper notice of termination and without any 
allegation or proof of cause.16 Assuming that the circular 
is mandatory, a local authority will hereafter have to state 
and discuss a reason for eviction in an informal conference 
with the tenant. The Authority may still be free, however, 
to give proper notice under its lease and institute summary 
eviction proceedings on the basis of that notice and without 
further reference to the reason stated at the conference. 
The tenant may be allowed, in court, to argue that the 
judgment should not be granted to the Authority because 
the reason disclosed at the conference is illegal or other­
wise improper. If the reason stated at the conference is 
proper on its face, however, the tenant will be powerless 
to contest its application to his or her case. Thus, every 
housing authority may retain the power to deny a des­
perately needed public benefit without any evidence what­
ever that the tenant was in fact guilty of the acts cited in 
the conference as the reason for the eviction, or indeed of 
any other wrongful act.17 Only this Court can make clear 
the procedures that must be followed, whether under the 
circular or under the Constitution. 16 17

16 Indeed, HUD’s non-mandatory local Housing Authority Management 
Handbook continues, to petitioner’s knowledge, to “ recommend” that each 
local authority’s lease be drawn on a month-to-month basis whenever 
possible. “ This should permit any necessary evictions to be accomplished

upon the giving o f a statutory Notice to Quit-”  (Pt. IV , See. 1 (d )) . 
As petitioner pointed out in her reply brief filed herein in No. 712, Oct. 
Term, 1966, the genesis of this recommendation was the desire to be able 
to evict suspected “ subversives”  without having to prove their subversive­
ness or being faced with a constitutional challenge to the eviction.

17 Cf. Dixon v. Alabama State Board of Education, 294 F.2d 150, 157 
(5th Cir. 1961) :

The possibility of arbitrary action is not excluded by the existence 
of reasonable regulations. There may be arbitrary application of 
the rule to the facts of a particular case.

See also, Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964).



18

II.
Certiorari Should Be Granted to Decide What Pro­

cedures Are Required, Under the First and Fourteenth 
Amendments, to Protect Associational Activities.

At every stage in this litigation petitioner has claimed 
that the real reason for her eviction was her leadership 
of a tenants’ organization. The day after she was elected 
the group’s president, her lease was terminated and she 
received a notice to vacate for which no explanation has 
ever been given. She diligently sought an explanation and 
a fair hearing at which she could contest that explanation. 
At no time has she been given the opportunity, either by 
the agency in an administrative hearing or by any court, 
fully and adequately to prove her assertion by being 
allowed to present proof in support of her claim or by 
being confronted by any other claimed reason for evicting 
her.

The agency itself, of course, gave her no such oppor­
tunity. It neither gave her any reason for its action nor 
gave her an opportunity to answer charges against her 
or to present evidence on her own behalf. Although there 
is no record of the justice of the peace proceeding, it is 
apparent that the case was tried under provisions of the 
state summary ejectment statutes, Gen. Stats, of North 
Carolina, §42-26 et seq. (App. VI, pp. 21a-25a). Since the 
basis for eviction was the termination of the lease after 
the expiration of petitioner’s term, the action was brought 
under §42-26(1) (App. YI, p. 21a). Thus, the only issue 
to be tried was whether petitioner, as a tenant, was hold­
ing over after her term had expired. It was stipulated 
that the director of the Authority testified in the justice 
court that petitioner was not evicted because of her or­



19

ganizing activities. However, he did not testify as to what 
was, in fact, the reason, if any (E. 13-14).18

At the trial in the Superior Court petitioner was in no 
better a position to litigate her constitutional claims. That 
the Superior Court judge tried and decided the case solely 
on the consideration of the single, narrow issue of whether 
petitioner was holding over past the term of her lease is 
clear from his conclusions of law where he stated that:
(1) petitioner occupied the premises pursuant to a lease 
that gave her a month-to-month tenancy; (2) by giving 
notice of termination at least 15 days before the end of 
the term the lease was terminated as of August 31; (3) 
Mrs. Thorpe’s continued tenancy was without right; (4) 
that the Authority owed no duty to give the defendant any 
reason for terminating the lease or to give a hearing; and
(5) that the Authority had acted in conformity with the 
lease and laws of the state. (App. I ll, infra, pp. 14a-15a.)19

In light of the theory under which the case was tried, 
the finding of the Superior Court, on the sole basis of the 
stipulation between the parties, that the reason for the

18 It does not appear from the record whether he did not so testify 
because he was not asked, or because when he was asked an objection 
was made and sustained on the ground that the reason was irrelevant, 
since the only issue in the action was whether Mrs. Thorpe was holding 
over past her term.

19 It should be noted that, given the basis on which the trial proceeded, 
any assertion that the reason for the termination of the lease could have 
been found by discovery procedures is not correct. Under North Carolina 
law, discovery is not available with respect to issues which are held im­
material to the cause o f 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). Nor would any 
evidence of the reason, even if discoverable, have been admissible so that 
it could have been considered by the trial court, again since the reasons 
for the eviction were considered legally immaterial. See, e.g., Ourganus 
v. Guaranty Bank & Trust Co., 246 N.C. 65o, 100 S.E.2d 81 (1957); 
Culbertson v. Boyers, 242 N.C. 622, 89 S.E.2d 299 (1955).



20

eviction was not the activities of petitioner was baseless 
and improper. All that the parties stipulated was that, as 
a fact, the Authority’s director had testified in the court 
below (and would so testify again) that the reason for 
the eviction was not Mrs. Thorpe’s organizational activi­
ties and that the court could find the facts based on that 
stipulation and the affidavits (E. 13-14). The reason for 
this stipulation, since the only issue apparently to be tried 
was whether petitioner was holding over past her term, 
was to present the constitutional issue of the relevancy of 
the reason and the failure to give notice squarely to the 
trial court. Such a stipulation could justify only a finding 
that the director would, if called, give the testimony de­
scribed; it could not possibly justify a finding that his 
testimony was true or that, in fact, the Authority’s reason 
was not petitioner’s exercise of her First Amendment 
rights.

On the initial appeal, the Supreme Court of North Caro­
lina clearly upheld the trial court’s view of the case; i.e., 
that it was immaterial what may have been the reason for 
the lessor’s desire to discontinue Mrs. Thorpe’s tenancy. 
Thus, before the remand by this Court, petitioner was 
faced with courts that viewed the case as a dispute no 
different from that between any landlord and any tenant. 
The case had been tried and the result affirmed solely and 
specifically on the basis of the terms of the lease. Peti­
tioner did not, because she could not, litigate the issue 
of the reason for the termination. Whatever evidence 
there may have been in support of her claim could not have 
been introduced because it was considered irrelevant and 
immaterial.

On remand, however, the Supreme Court of North Caro­
lina suddenly and significantly shifted its ground. In its



21

latest opinion there is no statement that the reasons for 
eviction were immaterial. Instead, the court admitted 
that the timing of the club election and the serving of 
the notice to vacate “may arouse suspicion,” 157 S.E.2d 
at 149 (App. I, infra;, p. 3a). However, such suspicion 
was not enough, it held, in the face of the manager’s denial 
and since “no evidence was offered as to the purposes of 
the club or that its activities conflicted with the interests 
of the Authority,” 157 S.E.2d at 150 (App. I, infra, p. 5a).

On remand, therefore, the court below treated this case 
differently than it had treated it before and, more im­
portantly, how it had been treated by the trial court. The 
Supreme Court spoke as if petitioner could have litigated 
her free speech claim fully. Clearly the Superior Court 
(or the Supreme Court on the first appeal) had not tried 
the case on that assumption. Because of the court’s ap­
parent new view that the reason for eviction is relevant, 
the state supreme court should, instead of reaffirming, have 
remanded to the trial court to require the Authority to 
come forward with a reason for its action and to give 
petitioner an opportunity to present her evidence and to 
have the cause tried on the proper basis.

To fully illustrate the importance to a party seeking to 
assert constitutional claims of being confronted with a 
reason for an adverse administrative action, this case 
may be contrasted with Holt v. Richmond Redevelopment 
and Housing Authority, 266 F. Supp. 397 (EJD. Ya. 1966). 
There, a tenant brought an action in federal court to en­
join a threatened eviction on the ground that the reason 
for it was his First Amendment activities. Unlike this 
case, the tenant was not simply faced with a bare denial 
that such was the reason for his eviction. Rather, the 
Authority was required to come forward in court with



22

some justification for its action. This enabled the trial 
court to examine in detail the validity of the claimed basis 
and, on determining that it was without foundation, to 
reject it and infer that the only reason could have been 
the protected activities of the tenant.

"Whatever procedures are always required by the Con­
stitution before a denial of essential public benefits, surely 
where there is an obviously non-frivolous claim that the 
denial is because of the exercise of First Amendment rights, 
the failure to afford the claimant a full and adequate op­
portunity to litigate that issue in and of itself denies First 
Amendment rights as well as the right to due process of 
law. See, Joint Anti-Fascist Refugee Com. v. McGrath, 
341 U.S. 123. Without a full inquiry into the real reasons 
for eviction, the courts below could not have made a fair 
determination of whether Mrs. Thorpe’s participation in 
the tenants’ group was the reason for termination.

III.

Certiorari Should Be Granted to Decide the Question 
o f the Effect o f the February 7, 1967, HUD Circular.

A. The Holding o f the North Carolina Supreme Court 
That the HUD Circular Did Not Apply in This Case 
Conflicts With Prior Decisions o f This Court.

In its decision on remand for reconsideration in light of 
the February 7, 1967, HUD Circular, pursuant to the deci­
sion of this Court, the North Carolina Supreme Court 
held that the circular did not apply in petitioner’s case 
since it was issued after the notice to vacate was issued 
and after the eviction orders of the lower courts had been 
affirmed. 157 S.E.2d 147, 149-150 (App. I, infra, pp. 4a-



23

5a).20 Thus, the court below held that the judgment of 
eviction had become final before the circular issued and 
relied on the opinion of this Court in Greene v. United 
States, 376 U.S. 149 (as well as certain North Carolina 
decisions) to hold the circular inapplicable. The issue thus 
raised—the applicability of federal administrative regula­
tions promulgated during the pendency of litigation which 
has not as yet become final—is a federal question of gen­
eral importance.

Petitioner contends that the lower court’s holding was in 
error. The judgment of eviction against petitioner had not 
become final when the circular issued and therefore the 
court’s reliance on Greene was misplaced. In its earlier 
opinion this Court indicated that it felt the circular to be 
applicable:

While the directive provides that certain records shall 
be kept commencing with the date of its issuance, there 
is no suggestion that the basic procedure it prescribes 
is not to be followed in all eviction proceedings that 
have not become final. 386 U.S. at 673.21

The proceedings here had not become final since this Court 
had granted a writ of certiorari to review the state court’s 
decision.22 Thus, this case is directly analogous to Hamm 
v. City of Rock Hill, 379 U.S. 306, where this Court held 
that the passage of the Civil Rights Act of 1964 while peti­

20 Because of its holding as to applicability, the court below did not 
reach other issues left open by this Court in its order of remand (386 
U.S. 670, 673, n. 4), viz., the legal effect of the circular, and whether it 
binds local housing authorities.

21 This Court, however, expressly stated that it was not deciding whether 
the circular was applicable in petitioner’s case. 386 U.S. at 673, n. 4.

22 The North Carolina Supreme Court had, of course, granted a stay 
of the eviction order pending disposition of the petition for writ of cer­
tiorari. Petitioner remains in possession under a further stay.



24

tions for writ of certiorari were pending had the effect 
of abating challenged criminal prosecutions. Greene v. 
United States, on the other hand, involved a change in an 
administrative regulation after a final decision by this 
Court established the substantive rights of the parties.23

Application of the HUD circular of February 7, 1967, in 
this case is fully justified by its language. It was promul­
gated in response to litigation, including this case, pend­
ing in the courts challenging eviction without notice of 
reasons (see, App. VII, infra, p. 26a). The paragraph re­
quiring that notice be given contains no language of fu­
turity and, as this Court pointed out, has “no suggestion” 
that it is not to be followed in all non-final proceedings. 
Thus, since the circular deals with a procedural regulation 
in the classic sense, relating to notice and the right to be 
heard, the long line of cases holding that procedural rules 
enacted during the pendency of a case are to be applied 
should be followed.24

23 In Greene, a claim was made against the United States for restitu­
tion for loss of earnings caused by the unauthorized revocation of a 
security clearance. In 1959 this Court had held, in Greene V- McElroy, 
360 U.S. 474, that the revocation was improper; in December, 1959, 
Greene filed his claim under the provisions of a 1955 regulation; subse­
quently in 1960, while the claim was being processed, the government 
issued a new regulation governing the granting of claims and insisted that 
Greene had to comply with its provisions. This Court held that since 
Greene’s claim against the government had become final by virtue of the 
Court’s decision in Greene v. McElroy and the district court’s order pur­
suant to it, a new regulation that was not merely procedural in nature 
but altered substantive rights, would not be applied retroactively. Greene 
v. United States, 376 U.S. at 163-64.

24 See, e.g., Bruner v. United States, 343 U.S. 112; E x Parte Collett, 
337 U.S. 55; Orr v. United States, 174 F.2d 577 (2nd Cir. 1949) ; Schoen 
v. Mountain Producers Corporation, 170 F.2d 707 (3rd Cir. 1948) ; Bowles 
v. Strickland, 151 F.2d 419 (5th Cir. 1945); Iloadley v. San Francisco, 
94 U.S. 4; and Congress of Racial Equality v. Clinton, 346 F.2d 911 
(5th Cir. 1964), and Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965).



25

B. Certiorari Should Be Granted to Resolve Important 
Questions Left Open by  the Prior Decision of This 
Court Concerning the Legal Effect o f the Circular 
and W helker It Binds Local Housing Authorities.

Because the North Carolina Supreme Court on remand 
held that the HUD circular was not applicable in this case, 
it did not consider any of the other issues involved which 
this Court declined to decide in its earlier per curiam 
order, see 157 S.E.2d at 150 (App. I, infra, p. 5a). These 
questions are “the legal effect of the circular” and “the 
extent to which it binds local housing authorities,” 386 
U.S. at 673, n. 4. Petitioner contends that, assuming this 
Court holds that the circular is applicable in this case, 
that it should reach these other questions and hold: (1) 
that the Department of Housing and Urban Development 
had authority to issue the circular, and (2) that it is 
mandatory and binding on local housing authorities.

As this Court pointed out in its prior decision, federal 
agencies “are given general statutory power to make ‘such 
rules and regulations as may be necessary to carry out’ ” 
federal low-rent housing programs by the United States 
Housing Act of 1937, §8, 50 Stat. 891, as amended, 42 H.S.C. 
§1408.25 386 U.S. at 673, n. 4 (see App. IV, infra, p. 18a). 
It is clear that HUD regards that provision as giving ample 
authority for issuing the circular (see, App. VIII, infra, 
p. 37a). Further, it is clear that the circular is intended 
to be a binding regulation. This follows from its language,26

25 The Housing Act refers to the Public Housing Administration. The 
powers and functions of that agency were transferred to the Department 
of Housing and Urban Development by Sec. 5(a) of the Department of 
Housing and Urban Development Act, 79 Stat. 667 (Sept. 9, 1965).

26 Compare the language o f the February 7 circular, which states that 
"it is essential”  for a tenant to be told the reasons for eviction and that 
each authority “ shall maintain”  records giving the reasons for every evic­
tion (App. V II, infra, pp. 26a, 27a), with that of the earlier May 31, 
1966 circular, which only urged "as a matter of good social policy” that 
reasons be given (Id. at 28a).



26

the status of procedural circulars under the department’s 
low rent Housing Manual,27 the publication since October, 
1967, of the circular as a binding manual provision,28 and 
the assertion of Mr. Hummel that in the department’s view, 
“ the circular is as binding in its present form as it will 
be after incorporation in the manual,” and “we intended 
it to be followed” (see App. VIII, infra, pp. 38a, 37a).

27 The Manual states:
Circulars of a procedural nature contain requirements which have 
the same effect as manuals; they are temporary additions to or modi­
fications of the manuals pending incorporation of the provisions into 
the appropriate manual, and are clearly identified as such. (Low 
Rent Housing Manual, Sec. 100.2; see App. V II, infra, p. 30a).

28 See, §3.9, Low-Rent Housing Management Manual (App. V II, infra, 
p. 33a). HUD manuals contain binding statements of HUD policy since 
they are “requirements which supplement the provisions of the Contracts 
between the Local Authority and the PH A ” Low Rent Housing Manual, 
§100.2 (see App. V II, infra, p. 29a). This is in contrast to “handbooks” 
which contain “ suggestions and techniques” (Id., p. 31a).



27

CONCLUSION

For the above reasons, the petition for writ of certiorari 
should be granted.

Respectfully submitted,

Of Counsel:

J a c k  G reen berg  
J am e s  M . N a b r it , III 
C h a r l e s  S t e p h e n  R alston  
C h a r l e s  H. J o n e s , Jr.

10 Columbus Circle 
New York, New York 10019

M . C. B u r t

213% West Main Street 
Durham, North Carolina

R . M ic h a e l  F r a n k

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

Attorneys for Petitioner

B r ia n  G l ic k  
E d w ard  Y .  S parer



A P P E N D I C E S



APPENDIX I

IN THE SUPREME COURT OF NORTH CAROLINA 
F all  T eem  1967 

No. 765—From Durham

J u d g m en t o f  the Supreme Court o f  North Carolina

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

J oyce C. T h o rpe .

Appeal by defendant from Bickett, J., October 1965 Civil 
Session, Durham Superior Court.

M . C. B u r t , J r . and J ack  Greenberg , J ames M . N abrit , 
III, M ich ael  M eltsn er , C harles H. J ones, J r . and 
C harles S teph en  R alston  For Defendant Appellant.

D an ie l  K. E dwards For Plaintiff Appellee.

H iggins, J .:

The plaintiff, a North Carolina corporation with federal 
assistance, built, owned, maintained, and managed the 
McDougald Terrace, a low-rent public housing project in 
the City of Durham. On November 11, 1964 the Housing 
Authority, as owner, and Joyce C. Thorpe, as tenant, en­
tered in a written agreement whereby the Authority leased 
to Mrs. Thorpe Apartment No. 38-G for a term of 30 days. 
The agreement provided: “ . . . This lease may be termi­
nated by the Tenant by giving to Management notice in



2a

writing of such termination 15 days prior to the last day 
of the term. The Management may terminate this lease hy 
giving to the Tenant notice in writing of such termination 
fifteen (15) days, prior to the last day of the term. . . . ” 
Each party had equal right to terminate the lease. The 
limitations as to time or terms were lawful. Chicago Hous­
ing Authority v. Blackman, 4 111. 2d 219, 122 N.E. 2d 522; 
Housing Authority of Los Angeles v. Cordova, 130 Cal. 
App. 2d Supp. 883, 279 P. 2d 215, cert, denied, 350 U.S. 969; 
Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 
70 N.W. 2d 605.

On August 11, 1965 the Housing Authority gave the ten­
ant notice it was terminating the lease and gave direction 
that she vacate the apartment. On August 20, and again on 
September 1, the tenant requested a hearing. The Manager 
of the Authority conferred with tenant’s counsel but did not 
give the tenant a hearing nor disclose any reason for re­
fusing to extend the lease.

After the term expired and the tenant refused to vacate, 
the Authority instituted ejectment proceedings. The tenant 
testifid that the day before the notice to terminate was 
served, she was elected President of the Parents’ Club, an 
organization for tenants living in the project. She testified, 
in her opinion, she was being ejected because of her club 
activities. In support of her belief, she offered nothing ex­
cept the timing between her election and the service of the 
notice. She neither offered evidence of the purposes of the 
club nor any reason why the Authority should object to it. 
The Manager testified at the hearing before the Justice, 
and, by affidavit, before the Superior Court that the ten­
ant’s activities in connection with the club played no part 
whatever in the decision of the Authority not to renew the 
lease.

Judgm ent o f  the Suprem e Court o f N orth  Carolina



3a

After hearing, the Justice of the Peace entered judgment 
of eviction. Mrs. Thorpe appealed to the Superior Court. 
The parties waived a jury trial and consented that Judge 
Bickett hear the evidence, find the facts, and render judg­
ment without the intervention of a jury. Judge Bickett 
found the Authority had terminated the lease in the man­
ner provided by the agreement of the parties and that the 
tenant’s activities in the Parents’ Club played no part in 
the decision of the Authority not to renew the lease. The 
timing of the club election and the service of the ejection 
notice might arouse suspicion if the activities of the club 
were shown to have been hostile to the Authority. Without 
such showing and in the face of positive testimony of the 
Manager to the contrary, the charge is based altogether on 
coincidence. The timing may arouse suspicion, but to the 
judicial mind, suspicion is never a proper substitute for 
evidence. From Judge Bickett’s findings against her, and 
his order that she surrender the premises, Mrs. Thorpe ap­
pealed. Pending our consideration of the appeal, we or­
dered a stay of execution.

On May 25, 1966 this Court, by opinion reported in 267 
N.C. 431, found no error in the decision of the Superior 
Court. On December 5, 1966 the Supreme Court of the 
United States granted certiorari, 385 U.S. 967, to review 
our decision. On February 7, 1967, the Department of 
Housing and Urban Development issued this directive to 
local housing authorities:

“ Since this is a federally assisted program, we believe 
it is essential that no tenant be given notice to vacate 
without being told by the Local Authority, in a private 
conference or other appropriate manner, the reasons 
for the eviction, and given an opportunity to make such 
reply or explanation as he may wish.”

Judgm ent o f  the Suprem e Court o f N orth  Carolina



4a

On April 9, 1987 the Supreme Court of the United States 
vacated our judgment and remanded the case to us “for 
such further proceedings as may be appropriate in the light 
of the February 7 Circular of the Department of Housing 
and Urban Development.”

At the beginning of our reconsideration, we note that the 
circular was issued two years after the lease was executed; 
17 months after the notice of termination was given; 16 
months after the eviction order was entered in the Justice’s 
court; 15 months after the eviction order was entered in the 
de novo hearing in the Superior Court; and 8 months after 
this Court found no error in the Superior Court judgment. 
The rights of the parties had matured and had been deter­
mined before the directive was issued. We quote from 
Green v. U. S., 376 U.S. 149:

“The first rule of construction is that legislation [and 
directives] must be considered as addressed to the fu­
ture, not the past. . . . (A) retrospective operation will 
not be given to a statute [or directive] which interferes 
with antecedant rights unless such be ‘the unequivocal 
and inflexible import of its terms, and the manifest in­
tention of the legislature. . . . (S)ince regulations of 
the type involved in this case are to be viewed as if 
they were statutes, this “first rule” of statutory con­
struction appropriately applies. . . . ’ ”  See also Green 
v. McElroy, 360 U.S. 474.

The North Carolina decisions are to the effect statutes 
are presumed to act prospectively only. Wilson v. Ander­
son, 232 N.C. 212, 59 S.E. 2d 836; Hospital v. Guilford 
County, 221 N.C. 308, 20 S.E. 2d 332; Hicks v. Kearney, 189 
N.C. 315, 127 S.E. 205. The rules against retrospective con-

Judgm ent o f  the Suprem e Court o f N orth  Carolina



5a

struction have rigid application where the rights of the 
parties depend upon contract. Moody v. Transylvania 
County,------N .C.------- --- ---- S.E. 2d —— ; Boston v. Hug­
gins, 216 N.C. 386, 5 S.E. 2d 162. This rule is general in its 
application. 25 RCL 787; 20 Minn. L. Rev. 775.

As directed by the order of the Supreme Court (386 U.S. 
670), we have reconsidered our former decision (267 N.C. 
341) in the light of the February 7, 1967 DHUD directive. 
After review, we conclude that 15 days prior to the expira­
tion date of the lease, the Housing Authority, without ex­
planation, notified the tenant that her lease would not be 
renewed. That procedure followed the terms of the lease. 
Before the expiration date the defendant demanded a hear­
ing. The Manager of the Authority conferred with her 
counsel but not with her. She refused to vacate, charging 
her lease was being vacated because of her having been 
elected President of the Parents’ Club. No evidence was of­
fered as to the purposes of the club or that its activities 
conflicted with the interests of the Authority. The Manager 
of the Authority stated unequivocally under oath that the 
termination of the lease had no connection whatever with 
the tenant’s activities in connection with the Parents’ Club. 
Judge Bickett so found. The finding was supported by com­
petent evdence and should be conclusive. The directive of 
February 7,1967 has no retroactive force. All critical events 
took place months before that date. This view does not 
require us to consider the directive on any basis except that 
it has no application to this case.

The judgment entered by Judge Bickett in the Superior 
Court of Durham County is supported by the record. Our 
original decision stands. The re-examination discloses

Judgm ent o f the Suprem e Court o f  N orth Carolina

No Error.



6a

APPENDIX II

Judgment of the Supreme Court of North Carolina

NORTH CAROLINA SUPREME COURT 

S prin g  T erm  1966 
No. 769—Durham

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

J oyce C. T h o rpe .

Appeal by defendant from Bickett, J., October 1965 Civil 
Session of Durham.

The plaintiff instituted summary ejectment proceedings 
before H. L. Townsend, Justice of the Peace, to remove the 
defendant from Apartment No. 38-G Ridgeway Avenue, 
McDougald Terrace, in the city of Durham. From a judg­
ment in favor of the plaintiff in the Court of the Justice 
of the Peace, the defendant appealed to the superior court 
where the matter was heard de novo by the court without 
a jury. The court made findings of fact, each of which is 
supported by stipulations or by the evidence in the record. 
The material facts so found may be summarized as follows:

The plaintiff, a corporation organized and operating 
under the laws of the State of North Carolina, is the owner 
of the tract of land known as the McDougald Terrace Hous­
ing Project in the city of Durham, which includes Apart­
ment No. 38-G Ridgeway Avenue. On 11 November 1964



7a

the plaintiff and the defendant entered into a lease con­
tract whereby the plaintiff leased to the defendant the said 
apartment for a term beginning 11 November 1964 and 
terminating at midnight 30 November 1964. The lease pro­
vided that it would be automatically renewed for successive 
terms of one month each. It further provided that the lease 
could be terminated by either party by giving* to the other 
written notice of such termination 15 days prior to the 
last day of the term. There was no provision in the lease 
requiring the lessor to give to the lessee any reason for 
its decision to terminate the lease or requiring that any 
hearing be held by the plaintiff, or by any other person or 
agency, with respect to such decision.

The defendant occupied the apartment pursuant to the 
lease. On 12 August 1965 the plaintiff gave, and the defen­
dant received, a written notice that the lease was cancelled 
effective 31 August 1965 and that at such time the plaintiff 
would be required to vacate the premises. The plaintiff 
gave no reason to the defendant for its decision to termi­
nate the lease, advising the defendant that it was not re­
quired to do so. The defendant requested a hearing but 
the plaintiff did not conduct any hearing at which the 
defendant was present. Whatever may have been the plain­
tiff’s reason for terminating the lease, it was neither that 
the defendant had engaged in efforts to organize the ten­
ants of McDougald Terrace nor that she was elected presi­
dent of a group which was organized in McDougald 
Terrace on 10 August 1965. The defendant refused to 
vacate the premises.

Upon these findings, the court concluded that the plain­
tiff terminated the lease as of 31 August 1965; that the 
occupancy of the premises by the defendant after such 
date was wrongful and in violation of the plaintiff’s right

Judgm ent o f the Suprem e Court o f N orth  Carolina



8a

to possession; that there was no duty upon the plaintiff to 
give to the defendant any reason for its termination of 
the lease or to hold any hearing upon the matter; and that 
the plaintiff was entitled to the possession of the premises 
and the defendant was in wrongful possession thereof.

The court, therefore, gave judgment that the defendant 
be removed from the premises, that the plaintiff be put in 
possession thereof and that the plaintiff have and recover 
from the defendant $58.00 plus a reasonable rent for the 
premises from and after 1 November 1965 until the same 
are vacated, together with the costs of the action. From 
this judgment the defendant appeals.

M. C. B u r t , B . M ich ael  F r a n k , J ack  G-reenberg, S h eila  
B u s h , E dward V. S parer of Counsel for defendant 
appellant.

D an iel  K . E dwards f o r  p la in tiff appellee.

P er C u r ia m . The plaintiff is the owner of the apartment 
in question. The defendant has no right to occupy it except 
insofar as such right is conferred upon her by the written 
lease which she and the plaintiff signed. This lease was 
terminated in accordance with its express provisions at 
midnight 31 August 1965. With its termination, all right 
of the defendant to occupy the plaintiff’s property ceased. 
Since that date the defendant has been and is a trespasser 
upon the plaintiff’s land.

The defendant having gone into possession as tenant of 
the plaintiff, and having held over without the right to do 
so after the termination of her tenancy, the plaintiff was 
entitled to bring summary ejectment proceedings against 
her to restore the plaintiff to the possession of that which 
belongs to it. G.S. 42-26; Murrill v. Palmer, 164 NC 50,

Judgm ent o f  the Suprem e Court o f  N orth  Carolina



9a

80 SE 55. It is immaterial what may have been the reason 
for the lessor’s unwillingness to continue the relationship 
of landlord and tenant after the expiration of the term as 
provided in the lease.

Having continued to occupy the property of the plaintiff 
without right after 31 August 1965, the defendant, by rea­
son of her continuing trespass, is liable to the plaintiff for 
damages due to her wrongful retention of its property and 
for the costs of the action. G. S. 42-32; McGuinn v. McLain, 
225 NC 750, 36 SE 2d 377; Lee, North Carolina Law of 
Landlord and Tenant, §18.

No Error.

Judgm ent o f the Suprem e Court o f  N orth  Carolina

Moore, J., not sitting.



10a

APPENDIX III

Judgment of the Superior Court o f Durham County

This cause, coming on to be heard, and being heard be­
fore the undersigned, Honorable William Y. Bickett, Judge 
Presiding at the October Civil Term of Durham County 
Superior Court, upon plaintiff and defendant having ex­
pressly waived trial by jury, and having stipulated and 
agreed in open Court that this matter be heard without a 
jury by the Judge, and that the Judge find the facts upon 
stipulations made and affidavit filed, and render thereon 
conclusions of law and judgment in the cause; and the 
Court, after hearing argument of counsel and considering 
and weighing the stipulations made in this action and the 
affidavit filed therein, finds facts as follows:

(1) That the Housing Authority of the City of Durham 
is and was during all of the times involved in this action, 
and specifically on the 11th of November, 1964, and there­
after to the present date, a corporation organized and 
operating under and by virtue of the laws of the State of 
North Carolina—specifically, the Statute known and desig­
nated as the Housing Authorities Law of the State of 
North Carolina;

(2) That during said times, C. S. Oldham was the Execu­
tive Director of said Housing Authority of the City of 
Durham and charged with responsibility for management 
of the properties of the Housing Authority of the City of 
Durham located in the City of Durham;

(3) That on the 11th day of November, 1964, and there­
after, continuously until this date, the Housing Authority 
of the City of Durham was and is the owner of real prop­



11a

erty known as the McDougald Terrace Housing Project, 
located in the City of Durham, and specifically a dwelling 
apartment located in said housing project, designated and 
known as No. 38-G Ridgeway Avenue;

(4) That on the 11th day of November, 1964, the plain­
tiff and the defendant entered into and duly executed a 
lease contract, wherein the Housing Authority of the City 
of Durham leased to the defendant Apartment No. 38-G 
Ridgeway Avenue in said McDougald Terrace Project for 
the term beginning November 11, 1964, and terminating at 
Midnight November 30, 1964, at a rental of $19.33 for said 
term, payable in advance on the first day of said term; that 
said lease contract further provided that the rental for 
these premises would be based on the current family com­
position and family income as were represented to the man­
agement of the Housing Authority of the City of Durham, 
and would be in conformance with the approved current 
rent schedule which had been adopted by the Housing Au­
thority of the City of Durham, for the operation of the 
project; that the lease further provided that the lease 
would be automatically renewed for successive terms of one 
month each at a rental of $29.00 a month, provided there 
was no change in the income or composition of the family 
and no violation of the terms of the lease; that the lease 
further provided that the rent should be payable in advance 
on the first day of each calendar month, and that the lease 
could be terminated by the tenant by giving to the Housing 
Authority of the City of Durham notice in writing of such 
termination fifteen (15) days prior to the last day of the 
term, and that management could terminate the lease by 
giving to the tenant notice in writing of such termination 
fifteen (15) days prior to the last day of the term; that

Judgm ent o f  the S uperior Court o f Durham  County



12a

there was no provision in said lease whereby it was agreed 
that the Housing Authority of the City of Durham would 
give the defendant any reason for termination of said lease 
or that any reason for the termination of said lease was 
required, and there was no provision in said lease that 
any hearing should be held by the Housing Authority or 
any other agency or person with respect to any decision 
by the Housing Authority of the City of Durham to termi­
nate said lease and to give the defendant notice in writing 
of such termination, as was provided in the language of 
the lease;

(5) That the defendant, upon her execution of said lease, 
entered into and occupied said Apartment No, 38-G Ridge­
way Avenue of the McDougald Terrace Project, owned by 
the Plaintiff, Housing Authority of the City of Durham 
and does now continue to occupy said dwelling apartment;

(6) That on the 12th day of August, 1965, the plaintiff, 
Housing Authority of the City of Durham, gave to the 
defendant, Joyce C. Thorpe, notice in writing as follows: 
“Your Dwelling Lease provides that the Lease may be 
cancelled upon fifteen (15) days’ written notice. This is 
to notify you that your Dwelling Lease will be cancelled 
effective August 31, 1965, at which time you will be re­
quired to vacate the premises you now occupy” ; and that 
the defendant duly received said notice to vacate on said 
date;

(7) That the defendant failed and refused to vacate said 
premises and continues to occupy same;

(8) That the Housing Authority of the City of Durham 
duly brought an action in summary ejectment before the

Judgm ent o f  the S u perior Court o f Durham  County



13a

Justice of the Peace Court in Durham County, and after 
hearing before said Court judgment was duly entered, re­
quiring the defendant Joyce C. Thorpe to vacate said prem­
ises and ordering any duly constituted officer of Durham 
County to remove the defendant from said premises;

(9) That the defendant gave notice of appeal to the 
Superior Court and posted bond, pursuant to the provisions 
of Gr. S. 42-34;

(10) That the plaintiff Housing Authority of the City 
of Durham, acting through C. S. Oldham, its Manager and 
Executive Director, gave notice to the defendant to vacate 
said premises not because she had engaged in efforts to or­
ganize the tenants of McDougald Terrace, nor because she 
was elected President of a group organized in McDougald 
Terrace on August 10,1965; that these were not the reasons 
said notice was given and eviction undertaken;

(11) That the plaintiff Housing Authority of the City 
of Durham gave no reason to the defendant for giving her 
notice that the lease was being terminated at the end of 
the term, nor did the plaintiff or any of its agents or em­
ployees conduct a hearing at which the defendant was pres­
ent or invited to be present to inquire into reasons for 
terminating her lease;

(12) That the defendant did request a hearing on this 
matter but had no hearing other than that before the Justice 
of the Peace in this eviction action and in this Court;

(13) That the plaintiff, through its agents and employees, 
did inform the defendant that the plaintiff was not required

Judgm ent o f  the S uperior Court o f Durham  County



14a

to give or assign reasons to the defendant for the termi­
nation of her lease, and has not given to her or communi­
cated to her any reason for so doing, other than that they 
desired to terminate her lease;

W herefore, the Court concludes, as a matter of law, as 
follows:

(1) That the defendant, during August of 1965, occupied 
the premises owned by the plaintiff Housing Authority of 
the City of Durham, known and designated as Apartment 
No. 38-G Ridgeway Avenue, McDougald Terrace, under 
and pursuant to the terms and provisions of a lease, where­
by she was tenant from month to month;

(2) That by giving the defendant written notice of ter­
mination of her lease on the 12th day of August, 1965, the 
plaintiff effectively terminated the tenancy of the lease of 
the defendant as of the 31st day of August, 1965;

(3) That the continued occupancy of said premises by 
the defendant after the 31st day of August, 1965, was with­
out right and was wrongful and against the express direc­
tion of the owner of said premises to vacate and in violation 
of said owner’s right +o possession of said premises;

(4) That the Housing Authority of the City of Durham 
did not owe a duty to communicate or give to the defendant 
any reason for its termination of her lease, nor was it re­
quired or had any duty to hold a hearing on said subject;

(5) That the Housing Authority of the City of Durham 
acted in conformity with and in accordance with the terms 
and provisions of the lease entered into with the defendant,

Judgm ent o f  the Superior Court o f  Durham  County



15a

and the provisions of the laws of the State of North Caro­
lina, in terminating her lease;

(6) That the plaintiff is entitled to the possession of the 
premises described hereinabove, and that the defendant 
is in the wrongful possession thereof;

Now, therefore, it is ordered, adjudged and decreed that 
the defendant be removed from the said premises known 
as Apartment No. 38-Gr Eidgeway Avenue, and the plain­
tiff put in possession thereof, and that the plaintiff 
have and recover from the defendant the sum of Fifty- 
eight and No/100 ($58.00) Dollars, and a further amount, 
if any, as reasonable rent for said premises from the 1st 
day of November, 1965, until the premises are vacated by 
the defendant, and the defendant shall pay the costs to be 
taxed by the Clerk.

This 26th day of October, 1965.

Judgm ent o f  the S u perior Court o f Durham  County

W illiam  Y. B ickett 
Judge Presiding.



16a

APPENDIX IV

Excerpts from the United States Housing Act o f 1937 
42 U.S.C. § 1401 et seq.

§ 1401. Declaration o f policy

It is declared to be the policy of the United States to 
promote the general welfare of the Nation by employing 
its funds and credit, as provided in this chapter, to assist 
the several States and their political subdivisions to alle­
viate present and recurring unemployment and to remedy 
the unsafe and insanitary housing conditions and the acute 
shortage of decent, safe, and sanitary dwellings for families 
of low income, in urban and rural nonfarm areas, that are 
injurious to the health, safety, and morals of the citizens 
of the Nation. In the development of low-rent housing it 
shall be the policy of the United States to make adequate 
provision for larger families and for families consisting of 
elderly persons. It is the policy of the United States to 
vest in the local public housing agencies the maximum 
amount of responsibility in the administration of the low- 
rent housing program, including responsibility for the 
establishment of rents and eligibility requirements (subject 
to the approval of the Authority), with due consideration 
to accomplishing the objectives of this chapter while effect­
ing economies. Sept. 1, 1937, c. 896, § 1, 50 Stat. 888; 
July 15, 1949, c. 338, Title III, § 307(a), 63 Stat. 429; 
Sept. 23, 1959, Pub.L. 86-372, Title Y, § 501, 73 Stat. 679.

§ 1404a. Public Housing Administration; right to sue; em­
ployment of personnel; delegation of functions; 
rules and regulations; expenses

The Public Housing Administration shall sue and be 
sued only with respect to its functions under this chapter,



17a

and sections 1501-1505 of this title. The Public Housing- 
Commissioner may appoint such officers and employees as 
he may find necessary, which appointments, notwithstand­
ing the provisions of any other law, after August 10, 1948, 
shall be made under this section, and shall be subject to 
the civil-service laws and the Classification Act of 1949, 
as amended; delegate any of his functions and powers to 
such officers, agents, or employees of the Public Housing 
Administration as he may designate; and make such rules 
and regulations as he may find necessary to carry out his 
functions, powers, and duties. Funds made available for 
carrying out the functions, powers, and duties of the Ad­
ministration (including appropriations therefor, which are 
authorized) shall be available, in such amounts as may 
from year to year be authorized by the Congress, for the 
administrative expenses of the Administration. Notwith­
standing any other provisions of law except provisions of 
law enacted after August 10, 1948 expressly in limitation 
hereof, the Public Housing Administration, or any State 
or local public agency administering a low-rent housing 
project assisted pursuant to this chapter or sections 1501- 
1505 of this title, shall continue to have the right to main­
tain an action or proceeding to recover possession of any 
housing accommodations operated by it where such action 
is authorized by the statute or regulations under which 
such housing accommodations are administered, and, in 
determining net income for the purposes of tenant eligibil­
ity with respect to low-rent housing projects assisted pur­
suant to this chapter and sections 1501-1505 of this title, 
the Public Housing Administration is authorized, where 
it finds such action equitable and in the public interest, 
to exclude amounts or portions thereof paid by the United

E xcerp ts  from  the United S tates H ousing A ct o f 1937



18a

States Government for disability or death occurring in 
connection with military service. Aug. 10, 1948, c. 832, 
Title Y, § 502(b), 62 Stat. 1284; Oct. 28, 1949, c. 782, Title 
XI, § 1106(a), 63 Stat. 972.

§ 1408. Same; rules anti regulations

The Administration may from time to time make, amend, 
and rescind such rules and regulations as may be necessary 
to carry out the provisions of this chapter. Sept. 1, 1937, 
c. 896, § 8, 50 Stat. 891; 1947 Reorg.Plan No. 3, §§ 1, 4(a), 
9 eff. July 27, 1947, 12 F.R. 4981, 61 Stat. 954.

E xcerp ts  from  the United S tates H ousing A ct o f  1937



19a

APPENDIX V

Excerpts from  the North Carolina 
“ Housing Authorities Law”

Gen. Stats, of North Carolina, § 157-1 et seq.

§ 157-2. Finding and declaration of necessity

It is hereby declared that unsanitary or unsafe dwelling- 
accommodations exist in urban and rural areas throughout 
the State and that such unsafe or unsanitary conditions 
arise from overcrowding and concentration of population, 
the obsolete and poor condition of the buildings, improper 
planning, excessive land coverage, lack of proper light, air 
and space, unsanitary design and arrangement, lack of 
proper sanitary facilities, and the existence of conditions 
which endanger life or property by fire and other causes; 
that in such urban and rural areas many persons of low 
income are forced to reside in unsanitary or unsafe dwell­
ing accommodations; that in such urban and rural areas 
there is a lack of safe or sanitary dwelling accommodations 
available to all the inhabitants thereof and that conse­
quently many persons of low income are forced to occupy 
overcrowded and congested dwelling accommodations; that 
these conditions cause an increase in and spread of disease 
and crime and constitute a menace to the health, safety, 
morals and welfare of the citizens of the State and impair 
economic values; that these conditions cannot be remedied 
by the ordinary operation of private enterprise; that the 
clearance, replanning and reconstruction of such areas and 
the providing of safe and sanitary dwelling accommoda­
tions for persons of low income are public uses and pur­
poses for which public money may be spent and private 
property acquired; that it is in the public interest that 
work on such projects be instituted as soon as possible;



20a

and that the necessity for the provisions hereinafter en­
acted is hereby declared as a matter of legislative deter­
mination to be in the public interest. (1935, c. 456, s. 2; 1938, 
Ex. Sess., c. 2, s. 14; 1941, c. 78, s. 2.)

§ 157-23. Contracts with federal government

In addition to the powers conferred upon the authority 
by other provisions of this article, the authority is em­
powered to borrow money and/or accept grants from the 
federal government for or in aid of the construction of 
any housing project which such authority is authorized by 
this article to undertake, to take over any land acquired 
by the federal government for the construction of a hous­
ing project, to take over or lease or manage any housing 
project constructed or owned by the federal government, 
and to these ends, to enter into such contracts, mortgages, 
trust indentures, leases or other agreements as the federal 
government may require including agreements that the 
federal government shall have the right to supervise and 
approve the construction, maintenance and operation of 
such housing project. It is the purpose and intent of this 
article to authorize every authority to do any and all things 
necessary to secure the financial aid and the co-operation 
of the federal government in the construction, maintenance 
and operation of any housing project which the authority 
is empowered by this article to undertake. (1935, c. 456, 
s. 23.)

E xcerp ts from  the N orth  Carolina
“ H ousing A uthorities Law ”



21a

APPENDIX VI

North Carolina Statutes Re Summary Ejectment 
Gen. Stats of North Carolina, § 42-26 et seq.

§ 42-26. Tenant holding over may be dispossessed in certain 
cases

Any tenant or lessee of any house or land, and the as­
signs under the tenant or legal representatives of such 
tenant or lessee, who holds over and continues in the pos­
session of the demised premises, or any part thereof, with­
out the permission of the landlord, and after demand made 
for its surrender, may he removed from such premises in 
the manner hereinafter prescribed in any of the following 
cases:

(1) When a tenant in possession of real estate holds
over after his term has expired.

(2) When the tenant or lessee, or other person under
him, has done or omitted any act by which, ac­
cording to the stipulations of the lease, his estate 
has ceased.

(3) When any tenant or lessee of lands or tenements,
who is in arrear for rent or has agreed to culti­
vate the demised premises and to pay a part of 
the crop to be made thereon as rent, or who 
has given to the lessor a lien on such crop as a 
security for the rent, deserts the demised prem­
ises, and leaves them unoccupied and unculti­
vated. (4 Geo. II, c. 28; 1868-9, c. 156, s. 19; 
Code, ss. 1766, 1777; 1905, cc. 297, 299, 820; 
Rev., s. 2001; C. S., s. 2365.)



22a

§ 42-28. Summons issued by justice on verified complaint

When the lessor or his assigns, or his or their agent or 
attorney, makes oath in writing, before any justice of the 
peace of the county in which the demised premises are 
situated, stating such facts as constitute one of the cases 
described in §42-26 and §42-27, and describing the premises 
and asking to be put in possession thereof, the justice shall 
issue a summons reciting the substance of the oath, and 
requiring the defendant to appear before him or some other 
justice of the county, at a certain place and time (not to 
exceed five days from the issuing of the summons, with­
out the consent of the plaintiff or his agent or attorney), 
to answer the complaint. The plaintiff or his agent or at­
torney may in his oath claim rent in arrear, and damage 
for the occupation of the premises since the cessation of 
the estate of the lessee: Provided, the sum claimed shall 
not exceed two hundred dollars; but if he omits to make 
such claim, he shall not be thereby prejudiced in any other 
action for their recovery. (1868-9, c. 156, s. 20; 1869-70, c. 
212; Code, s. 1767; Rev., s. 2002; C. S., s. 2367.)

§ 42-29. Service of summons

The officer receiving such summons shall immediately 
serve it by the delivery of a copy to the defendant or by 
leaving a copy at his usual or last place of residence, with 
some adult person, if any such be found there; or, if the 
defendant has no usual place of residence in the county 
and cannot be found therein, by fixing a copy on some con­
spicuous part of the premises claimed. (1868-9, c. 156, s. 21; 
Code, s. 1768; Rev., s. 2003; C. S., s. 2368.)

N orth  Carolina S tatutes R e Sum m ary E jectm en t



23a

§ 42-30. Judgment by default or confession

The summons shall be returned according to its tenor, 
and if on its return it appears to have been duly served, 
and if the defendant fails to appear, or admits the allega­
tions of the complaint, the justice shall give judgment that 
the defendant be removed from, and the plaintiff be put 
in possession of, the demised premises; and if any rent or 
damages for the occupation of the premises after the ces­
sation of the estate of the lessee, not exceeding two hun­
dred dollars, be claimed in the oath of the plaintiff as due 
and unpaid, the justice shall inquire thereof, and give judg­
ment as he may find the fact to be. (1868-9, c. 156, s. 22; 
Code, s. 1769; Rev., s. 2004; C. S., s. 2369.)

§ 42-31. Trial by justice; jury trial; judgment; execution

If the defendant by his answer denies any material alle­
gation in the oath of the plaintiff, the justice shall hear 
the evidence and give judgment as he shall find the facts 
to be. If either party demands a trial by jury, it shall be 
granted under the rules prescribed by law for other trials 
by jury before a justice; and if the jury finds that the 
allegation in the plaintiff’s oath, which entitles him to be 
put in possession, is true, the justice shall give judgment 
that the defendant be removed from and the plaintiff put 
in possession of the demised premises, and also for such 
rent and damages as shall have been assessed by the jury, 
and for costs; and shall issue his execution to carry the 
judgment into effect. (1868-9, e. 156, s. 23; Code, s. 1770; 
Rev., s. 2005; C. S., s. 2370.)

§ 42-32. Damages assessed to trial

On appeal to the superior court, the jury trying issues 
joined shall assess the damages of the plaintiff for the

N orth  Carolina Statutes B e  Sum m ary E jectm en t



24a

detention of Ms possession to the time of the trial in that 
court; and, if the jury finds that the detention was wrong­
ful and that the appeal was without merit and taken for 
the purpose of delay, the plaintiff, in addition to any other 
damages allowed, shall be entitled to double the amount of 
rent in arrears, or which may have accrued, to the time 
of trial in the superior court. Judgment for the rent in 
arrears and for the damages assessed may, on motion, be 
rendered against the sureties to the appeal. (1868-9, c. 156, 
s. 28; Code, s. 1775; Rev., s. 2006; C. S., s. 2371; 1945, c. 
796.)

§ 42-34. Undertaking on appeal when to be increased

Either party may appeal from the judgment of the jus­
tice, as is prescribed in other cases of appeal from the 
judgment of a justice; upon appeal to the superior court 
either plaintiff or defendant may demand that the same 
shall be tried at the first term of said court after said ap­
peal is docketed in said court, and said trial shall have 
precedence in the trial of all other cases, execpt in cases 
of exceptions to homesteads: Provided, that said appeal 
shall have been docketed at least ten days prior to the 
convening of said court: Provided further, that in the 
event the trial before the justice of the peace takes place 
at least fifteen days prior to the convening of said superior 
court, said appeal shall, upon the demand of either plain­
tiff or defendant, be docketed in time to be tried at said 
first term of said superior court after said trial before 
the justice of the peace: Provided, further, that the presid­
ing judge, in his discretion, may make up for trial in 
advance any pending case in which the rights of the parties 
or the public require it; but no execution commanding the

N orth  Carolina S tatutes B e  Sum m ary E jectm en t



25a

removal of a defendant from the possession of the demised 
premises shall be suspended until the defendant gives an 
undertaking in an amount not less than one year’s rent 
of the premises, with sufficient surety, who shall justify 
and be approved by the justice, to be void if the defendant 
pays any judgment which in that or any other action the 
plaintiff may recover for rent, and for damages for the 
detention of the land. At any term of the superior court 
of the county in which such appeal is docketed after the 
lapse of one year from the date of the filing of the under­
taking above mentioned, the tenant, after legal notice to 
that end has been duly executed on him, may be required 
to show cause why said undertaking should not be increased 
to an amount sufficient to cover rents and damages for such 
period as to the court may seem proper, and if such tenant 
fails to show proper cause and does not file such bond for 
rents and damages as the court may direct, or make affi­
davit that he is unable so to do and show merits, his appeal 
shall be dismissed and the judgment of the justice of the 
peace shall be affirmed. (1868-9, c. 156, s. 25; 1883, c. 316; 
Code, s. 1772; Rev., s. 2008; C. S., s. 2373; 1921, c. 90; Ex. 
Sess. 1921, c. 17; 1933, c. 154; 1937, c. 294; 1949, c. 1159.)

N orth  Carolina Statutes B e  Sum m ary E jectm en t



26a

APPENDIX VII

Circulars and Manual Provisions of the United States 
Department of Housing and Urban Affairs 

Circular of February 7, 1967

DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT

Washington, D. C. 20410
C ibculab

2-7-67

Office of the Assistant Secretary For Renewal 
and Housing Assistance

To: Local Housing Authorities
Assistant Regional Administrators for 
Housing Assistance 

HAA Division and Branch Heads

F bom  : Don Hummel
S u b j e c t : Termination of Tenancy in Low-Rent Projects

Within the past year increasing dissatisfaction has been 
expressed with eviction practices in public low-rent hous­
ing projects. During that period a number of suits have 
been filed throughout the United States generally challeng­
ing the right of a Local Authority to evict a tenant without 
advising him of the reasons for such eviction.
Since this is a federally assisted program, we believe it is 
essential that no tenant be given notice to vacate without be­
ing told by the Local Authority, in a private conference or 
other appropriate manner, the reasons for the eviction, and 
given an opportunity to make such reply or explanation as 
he may wish.



27a

Circulars and Manual Provisions of the United States 
Department of Rousing and Urban Affairs 

Circular of February 7,1967

In addition to informing the tenant of the reason(s) for 
any proposed eviction action, from this date each Local 
Authority shall maintain a written record of every eviction 
from its federally assisted public housing. Such records are 
to be available for review from time to time by HUD repre­
sentatives and shall contain the following information:

1. Name of tenant and identification of unit occupied.

2. Date of notice to vacate.
3. Specific reason(s) for notice to vacate. For example, 

if a tenant is being evicted because of undesirable ac­
tions, the record should detail the actions which re­
sulted in the determination that eviction should be 
instituted.

4. Date and method of notifying tenant with summary 
of any conference with tenant, including names of con­
ference participants.

5. Date and description of final action taken.

The Circular on the above subject from the PHA Commis­
sioner, dated May 31, 1966, is superseded by this Circular.

s / Don Hummel
Assistant Secretary for Renewal 
and Housing Assistance



28a

Circular of May 31, 1966

DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT 

PUBLIC HOUSING ADMINISTRATION

Washington, D. C. 20413
Circular

5-31-66
To: Local Authorities

Regional Directors
Central Office Division and Branch Heads 

F rom : Commissioner
S u b j e c t : Termination o f  tenancy in low-rent p ro je c ts

The Public Housing Administration has for a number o f  
years recommended that tenant leases be drawn on a month- 
to-month basis noting that this practice should permit any 
necessary evictions to be accomplished upon the giving o f  
a notice to vacate. There is as you may be aware growing 
opposition and challenge from individuals and organiza­
tions to the practice of simply giving the statutory notice 
without stating the reason or reasons therefor.
In connection with the above practice, we strongly urge, as 
a matter of good social policy, that Local Authorities in a 
private conference inform any tenants who are given such 
notices of the reasons for this action.
Also, not all Local Authorities have kept their tenant lease 
forms current with the result that, in some cases, obsolete 
and unenforceable lease conditions are being challenged 
legally. We urge that all Local Authorities review their 
lease forms and remove any such conditions. Regional Of­
fices will provide advice and assistance in connection with 
such reviews as may be desired.

s / Marie C. McGuire 
Commissioner



29a

PHA
September 1963 L o w -R en t  H ousing M an u al  100.2

Description and Distribution of PHA
Manuals and Technical Guides

1. Introduction. The Public Housing Administration has 
statutory responsibility for ensuring that the objectives 
of the U. S. Housing Act of 1937 are achieved. To ful­
fill this responsibility, it has established minimum re­
quirements for Local Authorities who are planning, 
constructing, and operating PHA-aided low-rent hous- 
sing. The basic requirements are set forth in the 
Preliminary Loan Contract, Annual Contributions Con­
tract, or Administration Contract between the Local 
Authority and the PHA. Supplementary requirements 
and advisory material for Local Authorities are con­
tained in manuals, circulars, bulletins, handbooks, and 
booklets issued by the PHA. This Section 100.2 treats 
the latter category of material, and gives information 
of the distribution of copies to Local Authorities.

2. The System of Directives

a. Manuals. The PHA manuals contain the require­
ments which supplement the provisions of the Con­
tracts between the Local Authority and the PHA. 
The four manuals and the subjects they cover are 
as follows:
(1) The Low-Rent Housing Manual states PHA 

policy and covers necessary Local Authority 
actions in connection with initiating, planning, 
and constructing a PHA-aided low-rent housing

Selected Provisions o f  the Federal Low-Rent
Housing Management Manual



30a

project, and also includes introductory Sections 
100.1 through 103.1 for use by all Local Author­
ities in development or management operations;

(2) The PHA Accounting Manual contains a uni­
form system of accounts to be used by Local 
Authorities and provides instructions for ac­
counting during the planning, construction, and 
operation of projects (Sections A14.1 and A14.2 
of this Manual relate specifically to small Local 
Authorities);

(3) The PHA Financing Manual provides instruc­
tions for temporary and permanent financing 
of projects;

(4) The PHA Management Manual contains PHA 
requirements and covers Local Authority ac­
tions in connection with the operation of projects 
after initial occupancy.

b. Circulars. Circulars issued by the PHA are of two 
types, procedural and nonprocedural. Circulars of 
a procedural nature contain requirements which have 
the same effect as manuals; they are temporary ad­
ditions to or modifications of the manuals pending 
incorporation of the provisions into the appropriate 
manual, and are clearly identified as such. Other 
circulars are merely informative or, if procedural, 
are for one-time, nonrecurring use and do not affect 
the manuals or other more permanent publications.

Selected  P rovisions o f the F edera l Low -R ent
R ousin g  M anagem ent Manual



31a

c. Bulletins, Handbooks, and Booklets

(1) The Low-Rent Housing Bulletins contain de­
tailed technical treatments of specific subjects 
and may be either (a) wholly or partially man­
datory, or (b) wholly nonmandatory. The dis­
tinction is made clear in each bulletin or in the 
reference to it in the appropriate manual. Orig­
inally, the Low-Rent Housing Bulletins were 
numbered LR-1 through LR-54 but some have 
become obsolete or have been superseded by 
sections in the handbook series. Although con­
version of other bulletins to the handbook series 
is planned, bulletins pertaining to development 
matters are not scheduled for conversion and 
revisions to these are issued as needed.

(2) The Local Housing Authority Accounting Hand­
book gives technical suggestions for accomplish­
ing the requirements of the PHA Accounting 
Manual.

(3) The Local Housing Authority Management 
Handbook offers suggestions and techniques for 
housing operation and maintenance.

(4) The Contractor’s Handbook covers instructions 
for use by contractors engaged in constructing 
PHA-aided housing.

(5) The Architect’s Check List booklet presents 
items for consideration in planning housing for 
the elderly.

Selected  P rovisions o f  the F edera l L ow -B ent
H ousing M anagem ent Manual



32a

(6) The Income Limits booklet provides guidance 
in establishing and administering income limits 
for PHA-aided housing.

(7) The Management of Housing for Senior Citizens 
booklet lists factors for consideration in oper­
ating housing for the elderly.

d. Material for Architects, Engineers and Contractors. 
The Architect’s Check List, certain sections of the 
Low-Bent Housing Manual, and some Low-Bent 
Housing Bulletins are also needed by architects and 
engineers; the Contractor’s Handbook is needed by 
construction contractors. To maintain appropriate 
relationships, such materials should be furnished 
by the Local Authority to its architects, engineers, 
and contractors. Additional copies needed for this 
purpose will be sent by the PHA to the Local Au­
thority on request.

3. Revisions

a. Looseleaf Form. All supplemental requirements and 
most advisory materials are issued in looseleaf form 
and should be inserted in binders and kept current 
at all times. The looseleaf form facilitates the 
handling of revisions, additions, and deletions.

Selected  P rovisions o f  the F ederal L ow -B ent
H ousing M anagem ent Manual



Selected  P rovisions o f the Federal Low -B ent
H ousing M anagem ent Manual

HUD
HAA
October 1967 L ow-Rent Management Manual Section 3 
3.9 Terminations of Tenancy

a. It is believed essential that no tenant be given 
notice to vacate without being told by a duly author­
ized representative of the Local Authority, in a 
private conference or other appropriate manner, 
the reasons for the eviction, and given an oppor­
tunity to make such reply or explanation as he 
may wish.

b. In addition to informing the tenant of the reason(s) 
for any proposed eviction action, each Local Au­
thority shall maintain a written record of every 
eviction from its federally assisted public housing. 
Such records are to be available for review from 
time to time by HUD representatives and shall 
contain the following information;
(1) Name of tenant and identification of unit oc­

cupied.
(2) Date and copy of notice to vacate.
(3) Specific reason(s) for notice to vacate. (For 

example, if a tenant is being evicted because of 
undesirable actions, the record should detail 
the actions which resulted in the determination 
that eviction should be instituted.)

(4) Date and method of notifying tenant of reasons 
and, if by conference with tenant, a summary 
of any such conferences, including names of 
conference participants.

(5) Date and description of final action taken.



34a

APPENDIX VIII

Correspondence re: HUD Interpretation of 
February 7, 1967, Circular

July 10, 1967
Mr. Don Hummel 
Assistant Secretary for Renewal 

and Housing Assistance 
Department of Housing and Urban 

Development 
Washington, D. C. 20410

Re: Tliorpe v. Housing Authority of the City 
of Durham—HUD Circular 2-7-67

Dear Mr. Hummel:
I am an attorney for Mrs. Joyce Thorpe, the petitioner 

in the case above. As you probably know, the Supreme 
Court of the United States, on April 17, 1967, remanded 
the case to the Supreme Court of North Carolina for recon­
sideration in light of the circular issued under your name 
by the Department of Housing and Urban Development on 
February 7, 1967. The Supreme Court of North Carolina 
has just recently required us to submit briefs in the case by 
August 1, 1967, in light of the action of the Supreme Court 
of the United States.

The purpose of this letter is to obtain from the Depart­
ment of Housing and Urban Development its views as to 
the present legal status and effect of the February 7th 
circular, in order to aid us in the preparation of our brief 
for the Supreme Court of North Carolina. We have a 
number of questions to which we would appreciate your 
response.



1. What is the legal status of the circular?

(A) Was it intended to he legally binding on local 
public housing authorities, or merely advisory?

(B) Is it planned to include the circular in the manual 
sent to public housing authorities so as to malic 
it binding?

(C) Has the circular been published in the Federal 
Register or is it intended that it will be pub­
lished in the Federal Register?

2. What is the intention of the circular as to the nature 
of the hearing to be afforded to the tenant? The circu­
lar speaks of local authorities telling the tenant “in a 
private conference or other appropriate manner, the 
reasons for the eviction” and giving a tenant “an 
opportunity to make such reply or explanation as he 
may wish.”

(A) Would an informal conference between the ten­
ant and the housing manager be sufficient to 
comply with the circular?

(B) Is the requirement intended to be broader, e.g., 
the giving of a more formal hearing at the 
tenant’s request before the housing authority 
board itself, or other body, at which time the 
tenant would be able to present evidence on 
her behalf and confront any persons who had 
made charges against her?

3. Does HUD have any views as to what reasons justify 
an eviction? Or, may the housing authority terminate 
the lease for any reasons it feels appropriate?

Correspondence re : H U D  In terpreta tion  o f
February 7, 1967, Circular



36a

4. Does HDD intend to enforce the circular by, for ex­
ample, cutting off funds if the records set out in the 
circular are not maintained or if notice of reason 
and opportunity to be heard are not given?

Thank you very much for your consideration.

Very truly yours,

/ s /  C harles S. R alston

Charles Stephen Ralston

Correspondence re: HUD Interpretation of
February 7, 1967, Circular

CSR :cf
cc: Mr. Joseph Burstein



37a

D epartm ent  oe H ousing  and  U rban  D evelopm ent  
W ash in g to n , D. C. 20410

C.S.R.
O ffice  of th e  A ssistant  S ecretary 7 /2 7 /6 7
for R en ew al  and  H ousing  A ssistance

JUL 25 1967
Mr. Charles Stephen Ralston 
NAACP Legal Defense and'

Educational Fund, Inc.
10 Columbus Circle 
New York, N.Y. 10019

Re: Joyce C. Thorpe v. Housing Authority of the City 
of Durham

Dear Mr. Ralston:

This is in reply to your letter of July 10,1967, advising that 
you are an attorney for Mrs. Joyce Thorpe, the petitioner 
in the above case, and requesting our views as to the present 
legal status and effect of our February 7, 1967, circular on 
the subject “ Terminations of Tenancy in Low-Rent Proj­
ects.”

The following are your questions and our answers:

Q. 1. What is the legal status of the circular'?
(A) Was it intended to be legally binding on local 

public housing authorities, or merely ad­
visory ?

A. It is our position that the circular is legally author­
ized under Section 8 of the United States Housing Act 
of 1937; that it means what it says; and that we in­
tended it to be followed. We assume that the question 
as to the authority of the Department of Housing and

Correspondence re: HUD Interpretation of
February 7, 1967, Circular



38a

Urban Development to make the provisions of the 
circular mandatory, either in whole or in part, is one 
that will be answered by the courts in the Thorpe 
case.

Q. (B) Is it planned to include the circular in the manual 
sent to public housing authorities so as to make 
it binding?

A. The circular is as binding in its present form as it 
will be after incorporation in the manual. It is in the 
process of being so incorporated.

Q. (C) Has the circular been published in the Federal 
Register or is it intended that it will be pub­
lished in the Federal Register?

A. It is not intended to publish the circular in the 
Federal Register. Under the Administrative Pro­
cedure Act, prior to its amendment by P.L. 89-487, 
effective July 4, 1967, publication in the Federal Reg­
ister was required only for matter which is formulated 
and adopted “ for the guidance of the public.” HUD 
policy over the years has been to treat local housing 
authorities as contracting parties under the Annual 
Contributions Contract not covered by the term “pub­
lic.” Material issued from time to time for the guid­
ance of local housing authorities in the implementa­
tion of the Annual Contributions Contract has, there­
fore, not been published in the Federal Register but 
local authorities are given actual notice of these 
matters by supplying the material (manuals, bulletins, 
circulars, and similar publications) directly to the

Correspondence r e : H U D  In terpreta tion  o f
F ebru a ry  7, 1967, Circular



39a

local authorities. While P.L. 89-437 amended the Ad­
ministrative Procedure Act as to publication in the 
Federal Register, the Attorney General’s memoran­
dum on that Act, at page 10, states that, “ rules, policy 
statements and interpretations which do not concern 
the public similarly are to be omitted from the Federal 
Register.” We therefore feel justified in continuing 
the policy of treating local housing authorities as not 
being part of the “public” for the purposes of the 
requirement of publication in the Federal Register. 
A copy of the HUD Regulations under P.L. 89-437 is 
enclosed for your information and convenience, to­
gether with a copy of the Attorney General’s Memo­
randum.

Q. 2. What is the intention of the circular as to the na­
ture of the hearing to be afforded to the tenant? 
The circular speaks of local authorities telling the 
tenant “in a private conference or other appropri­
ate manner, the reasons for the eviction” and 
giving a tenant “ an opportunity to make such reply 
or explanation as he may wish.”

(A) Would an informal conference between the 
tenant and the housing manager be sufficient 
to comply with the circular?

A. It was our intention that an informal conference 
would be sufficient compliance with the circular.

Q. (B) Is the requirement intended to be broader, e.g., 
the giving of a more formal hearing at the ten­
ant’s request before the housing authority board 
itself, or other body, at which time the tenant

C orrespondence r e :  H U D  In terp reta tion  o f
F ebru ary  7, 1967, Circular



40a

would be able to present evidence on her bebalf 
and confront any person who had made charges 
against her?

A. It was not intended that the housing authority be re­
quired to give the tenant a more formal hearing. The 
question of whether the tenant is entitled to a formal 
hearing or whether the opportunity afforded the 
tenant of a full judicial hearing when the Authority 
attempts to evict him through judicial process is suffi­
cient is one of the issues to be decided by the Thorpe 
ease. We would, of course, approve of the housing 
authorities’ adopting a procedure to give the tenant 
a more formal hearing.

Q. 3. Does HUD have any views as to what reasons 
justify an eviction! Or, may the housing authority 
terminate the lease for any reasons it feels ap­
propriate f

A. Of course there are a number of reasons that would 
justify an eviction, in our opinion, such as destruction 
of property, breaches of the peace or other boisterous 
conduct which would disturb other tenants, nonpay­
ment of rent, failure to report an increase in family 
income, or a number of other reasons which could 
reasonably be said to impair the successful operation 
of the project as “decent, safe, and sanitary” housing. 
Certainly the housing authority may not terminate the 
lease “ for any reasons it feels appropriate” if such 
reasons are arbitrary or capricious, nor may it evict 
a tenant as retribution for his exercise of a constitu­
tional right.

Correspondence r e : H U D  In terpreta tion  o f
F ebru ary  7, 1967, Circular



41a

Q. 4. Does HUD intend to enforce the circular by, for 
example, cutting off funds if the records set out in 
the circular are not maintained or if notice of 
reason and opportunity to be heard are not given!

A. HUD intends to enforce the circular to the fullest ex­
tent of its ability. Enforcement will probably be ac­
complished by judicial process or, if necessary, by the 
take-over and operation of the projects by HUD under 
the provisions of Section 22 of the USHAct rather 
than by cutting off funds to the local housing author­
ity. This is primarily because we consider these reme­
dies sufficient and more constructive than cutting off 
funds, and further because the full faith and credit of 
the United States is pledged to the payment of the 
bonds and other obligations of local housing authori­
ties, which, in turn, depends on the availability of these 
funds. Section 22 of the USHAct requires that these 
funds (annual contributions) must continue until the 
securities are paid, regardless of any act or omission 
of the local housing authority.

We trust that these are sufficient answers to your questions.

Sincerely yours,

/ s /  D on H u m m e l

Don Hummel
Assistant Secretary

Enclosures

Correspondence re: HUB Interpretation of
February 7, 1967, Circular



42a

D epartm ent  oe H ousing  and  U rban  D evelopm ent  
H ousing  A ssistance A dm inistration  

Washington, D.C. 20413
O.S.E.
8/8/67 

A ug 7 1967
Mr. Charles Stephen Ralston
NAACP Legal Defense and Educational Fund, Inc.
10 Columbus Circle 
New York, N. Y. 10019

Dear Mr. Ralston:

Reference is made to your letter of July 10, 1967, enclosing 
copy of letter you sent to Mr. Hummel asking for HUD’s 
opinion on the status and effect of the February 7, 1967, 
Circular regarding evictions from public housing. Your 
letter asks that I also give you my views as to the questions 
asked in your letter.

I am familiar with Mr. Hummel’s reply dated July 25,1967, 
to your letter and my views are the same as those expressed 
by him.

Correspondence r e :  H U D  In terpreta tion  o f
F ebru ary  7, 1967, Circular

Sincerely yours,

/ s /  J oseph  B urstein

Joseph Burstein 
Chief Counsel



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