Rock v Norfolk & Western Railway Company Reply for Appellants

    Z * R k

Isr th e

(Umtrt at tip Im M  §>tato
O ctober T er m , 1966 

No. 712

J oyce C. T horpe ,

H ousing  A u th o rity  oe th e  Cit y  op D u rh a m .

Petitioner,

on w r it  op certiorari to th e  suprem e  court
OP NORTH CAROLINA

BRIEF FOR PETITIONER

J ack  Greenberg  
J ames M . N abrit , TIT 
Charles S teph en  R alston  
C harles H . J ones, J r .
M ich ael  M eltsner  
S h e ila  R u sh  J ones 

10 Columbus Circle 
New York, New York 10019

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

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

Attorneys for Petitioner

Of Counsel:
M artin  G arbus 
E dward Y. S parer 
H oward T horkelson



I N D E X

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

Jurisdiction ....................................................................... 1

PAGE

Question Presented .........................................................  2

Constitutional and Statutory Provisions Involved....... 2

Statement ........................-.................................................  3

Summary of Argument 9

A rg u m en t  :

Petitioner Was Denied Due Process of Law by 
Her Eviction}from a State and Federally Sup­
ported Low-Income Housing Project, w-t -'t+ru A+r-

pf fhr B^nr^n H r the Frir-Dnn nr any TToarinopta. 
Cjffl±astAbA-S«6ia^aB™tiieA*eaiW«neiBtaj-Aetiun .... 12

Introduction 12

I. Public Housing Agencies May Not Evict
Tenants Arbitrarily......................................... 14

II. Petitioner Was Entitled'^Notice^f the Rea­
son He¥i«w-fee©*aeHirrc^I^S^re#te“W'ere 
Cancelled.. B ^ -.ii£ fi,fy icT!9d......................... 23

III. Petitioner Was Entitled to an Administra- 
t i ^ *ffearinĝ )to Contest the C^ncelMicin^of

.. 40C onclusion



A ppendix—
i i

Excerpts from the United States Housing Act of
PAGE

1937 (42 U.S.C. §1401 et seq.) ............ ............... la

Excerpts from the North Carolina “Housing Au­
thorities Law” (Gen. Stats, of North Carolina, 
§157-1 et seq.) ............. ............... ........ ........... ..... ....  10a
North Carolina Statutes Re Summary Ejectment 
(Gen. Stats, of North Carolina, §42-46 et seq.) .... 23a

T able oe Cases

Banks v. Housing Authority of City and County of 
San Francisco, 120 Cal. App. 2d 1, 260 P.2d 668
(1953), cert, denied, 347 U.S. 974 (1954) __________ 20

Berman v. Parker, 348 U.S. 26 _________________ 10, 26, 37
Bi-Metallic Inv. Co. v. State Board of Equalization,

239 U.S. 441............. ............................ .........................  34

Chicago Housing Authority v. Blackman, 4 I11.2d 319,
122 N.E.2d 522 (1954) .................... ............................ 15

Chin Tow v. United States, 208 U.S. 8 .........................  34
Clearfield Trust Co. v. United States, 318 U.S. 363 ....11, 32
Coe v. Armour Fertilizer Works, 237 U.S. 413 ............... 33
Cramp v. Board of Public Instruction, 368 U.S. 278 

(1961) _____________________ ____ _______ ________  21

Detroit Blousing Commission v. Lewis, 226 F.2d 180
(6th Cir. 1955) ................................ ............................. 20

Dixon v. Alabama State B<j. of Ed., 294 F.2d 150 
(5th Cir. 1961), cert, denied, 368 U.S. 930 .........11, 30, 34

Frost Trucking Co. v. Railroad Commission, 271 U.S.
583 ........................ .............................. ...................... ..10,29

Gonzales v. United States, 348 U.S. 407 
Greene v. McElroy, 360 U.S. 474 .........

,..,,,24, 27 
34-35, 39



I l l

Hanover Fire Insurance Co. v. Carr, 272 U.S. 494 .... 30 
Holt v. Richmond Dedevelopment and Housing Au­

thority, Civil Action No. 4746, E.I). Va., Sept. 7,
1966 .................. ....................... .... ........ ............15, 27, 28, 39

Housing Authority of Los Angeles v. Cordova, 130 
Cal. App.2d 883, 279 P.2d 215 (App. Dept. Super.
Ct. 1955) ......... ................ ............................. ................  15

I.C.C. v. Louisville & N. R. Co., 227 U.S. 88 ........... . . . 11, 34

Japanese Immigrant Case (Tamataya v. Fisher), 189
U.S. 86 ___ __________ ______________ ________ .....11,34

Johnson v. Zerbst, 304 U.S. 458 .....................................  30
Joint Anti-Fascist Refugee Comm. v. McGrath, 341

U.S. 123 ..... ...................... ..... ....... .................. ..11, 25, 36-39
Jones v. City of Hamtramck, 121 F. Supp 123 (E.D. 

Mich. 1954) ________ ___ ________ _____ _____ _____ „. 20

PAGE

Knight v. State Board of Education, 200 F. Supp.
174 (M.D. Tenn. 1961) ......................................... .......  34

Kutcher v. Housing Authority of Newark, 20 N.J. 181,
119 A.2d 1 (1955) ............................. ........... ............ 15

Kwong Hai Chew v. Golding, 344 U.S. 590 .................... 34

Lawson v. Housing Authority of City of Milwaukee,
270 Wise. 269, 70 N.W.2d 605 (1955), cert, denied,

350 U.S. 882 (1955) ......................................... . 15
Londoner v. Denver, 210 U.S. 373 .................... ........11, 34

Morgan v. United States, 304 U.S. 1 ..................10, 11, 24,
25, 27, 34

Morgan v. United States, 298 U.S. 468 .........................  34

NAACP v. Button, 371 U.S. 415 ................................... . 22
Ng Fung Ho v. White, 259 U.S. 276 .............................  37



IV

Ohio Bell Telephone Co. v. Public Utilities Com., 301
PAGE

U.S. 292 _______________ _____________________ _ 14
Be Oliver, 333 U.S. 257 .................................................... 33

Powell v. Eastern Carolina Regional Housing Auth.,
251 N.C. 812, 112 S.E.2d 396 (1960) .............. ........... 19

Rudder v. United States, 226 F.2d 51 (D.C. Cir. 1955)
14-15, 23

Shelton v. Tucker, 364 U.S. 479 ................. ..... .............. 30
Sherbert v. Yerner, 374 U.S. 398 (1963) ...........10,11,14, 21,

29, 39, 40
Simmons v. United States, 348 U.S. 397 ____________  27
Slochower v. Board of Higher Education, 350 U.S.

551 ______ ____ __________ ____ ________ __11,14,30,34
Southern R. Co. v. Virginia, 290 U.S. 190 ........... .......11, 34
Speiser v. Randall, 357 U.S. 513 __________ 10,11, 21, 29, 40
Steier v. New York State Educ. Com’r, 271 F.2d 13

(2d Cir. 1959), cert, denied, 361 U.S. 966 ............... . 34
Swan v. Board of Higher Education, 319 F.2d 56 (2nd 

Cir. 1963) ............. ...... .... .............................................  34

Taylor v. Leonard, 30 N.J. Super. 116, 103 A.2d 632
(1954) ......... ............... ...................................................  20

Torcaso v. Watkins, 367 U.S. 488 __ _________ ___ .21, 30
Tucker v. Texas, 326 U.S. 517 ............. ...... ..... 10, 22, 23, 40

United Public Workers v. Mitchell, 330 U.S. 75 ..........  30
United States v. Allegheny County, 322 U.S. 174 ...... 32
United States v. Helz, 314 F.2d 301 (6th Cir. 1963) .... 32 
United States v. Yazell, 382 U.S. 341.......... ......... .........  32

Vann v. Toledo Metropolitan Housing Authority, 113 
F. Supp. 210 (N,D. Ohio, 1953) ............... ................. 2 0



V

Wheeling’ Steel Corp. v. Glander, 337 U.S. 562 ..........  30
Wieman v. Updegraff, 344 U.S. 183 __ _________21, 22, 30
Williams v. City of Ypsilanti, C.A. No. 28936, D. Midi.,

1966 .............................. .................................................  15
Willrier v. Committee on Character & Fitness, 373

U.S. 96 ................................................... ........ ..10,11,23,34
Wong Yang Snng v. McGrath, 339 U.S. 33 ..................  34
Woods v. Wright, 334 F.2d 369 (5th Cir. 1964) ..........  34

Yick Wo v. Hopkins, 118 U.S. 356 .............................. . 14

PAGE

S tatutes and R egulations

28 U.S.C. § 1257 (3) .................. .......................................  1
42 U.S.C. § 1401 ...................... ...................... ..2,15,18, 25, 32

42 U.S.C. § 1402 .............................. ........ ........................ 2
42 U.S.C. § 1404a ................ ....... .................... ........ ...2,16,17
42 U.S.C. § 1410 (g) (3) ....................................................3,16

42 U.S.C. § 1415 (7) ................. ......................... ............3,18
Act of July 31, 1947, c, 418, § 2, 61 Stat. 705 (formerly 

42 U.S.C. § 1413a) .......... ............................................  17
Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C.

§ 2000(1......... ............................. ............................... . 20

24 C.F.R., Subtitle A, Part 1 __ ___________ _________  20
Executive Order No. 11063, 27 Fed. Reg. 11527 (1962) 20
Housing and Rent Act of 1947, Title II, §209 (b),

61 Stat. 201 ............... ..... .............................. ............-  17
Housing Act of 1948, Title V, § 502 (b), 62 Stat. 1284 17



VI

Gen. Stats. N.C. § 42-26 ....................... ........................  6

Gen. Stats. N.C. § 42-28 .......           3; g

Gen. Stats. N.C. § 42-29 ______     3, 6

Gen. Stats. N.C. § 42-30 ......        3, 6
Gen. Stats. N.C. § 42-31 _____     3; 6
Gen. Stats. N.C. § 42-32 ............       3? 6

Gen. Stats. N.C. § 42-34 .....          3) 6
Gen. Stats. N.C. § 157-1 _________________ ______ 3, 4,15

Gen. Stats. N.C. § 157-2 ................. ................3,18,19, 25, 26
Gen. Stats. N.C. § 157-4 __________________ _________ 3; ig

Gen. Stats. N.C. § 157-9 ......... ................................3, 4,12, 38
Gen. Stats. N.C. § 157-23 .......         3

Gen. Stats. N.C. § 157-29 ...... ...... .................... ...............3,16
Gen. Stats. N.C. § 157-40 ............           18
Gen. Stats. N.C. § 157-48 .......        18
93 Cong. Rec. 6044  .......... ..... ................. .....................  17

93 Cong. Rec. 9867 ____ __ _____ ______ ____ _________ 17

Other Authorities

1 Davis, Administrative Law Treatise, § 7.04 (1958) .... 34
Remarks of President Lyndon B. Johnson at Howard 

University, Wash., D.C., June 4, 1965, To Fulfill 
These Rights, p. 4 _________ _____ __________ _____  37

Jones, The Rule of Law and the Welfare State,
58 Colum. L. Rev. 143 (1958) .......... .......................... 35

PAGE



V l l

PAGE

Millspaugh, Problems and Opportunities of Relocation,
26 L aw  & Co n te m p . P rob. 6 (1961) _________ ____ 19

O’Neil, Unconstitutional Conditions: Welfare Benefits 
with Strings Attached, 54 C a lif . L. Rev. 443 (1966) 30

Reich, Individual Rights and Social Welfare: The 
Emerging Legal Issues, 74 Y ale L. J. 1245 (1965) .. 19,

35-36
Schorr, S lu m s  and S ocial I n secu rity  (Dept, o f  H.E.W. 

Research Report No. 1) (U.S. Govt. Printing Office, 
Washington, D.C., 1963) ................ .................. .........  19

Sternlieb, T en em en t  L andlord, Rutgers Univ. Press 
(1965) _______ __________________ ________________  19



I n the

fttp ra tt?  (fcmrt at %  Htnxtth MuUa
O ctober T eem , 1966 

No. 712

J oyce C. T horpe ,

■— v .

Petitioner,

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

ON WRIT OE CERTIORARI TO THE SUPREME COURT 
OF NORTH CAROLINA

BRIEF FOR PETITIONER

Opinions Below

The opinion of the Supreme Court of North Carolina 
(R. 26-29) is reported at 267 N.C. 431, 148 S.E.2d 290 
(1966). The judgment, including findings of fact and con­
clusions of law, of the Superior Court of Durham County 
(R. 19-23) is unreported.

Jurisdiction

The judgment of the Supreme Court of North Carolina 
was entered May 25, 1966 (R. 30). On August 12, 1966, 
the time for filing a petition for writ of certiorari was 
extended by Mr. Justice Brennan to and including Oc­
tober 21, 1966 (R. 31). The petition filed October 21, 1966, 
was granted December 5, 1966 (R. 32). Jurisdiction of 
this Court rests on 28 U.S.C. § 1257(3), petitioner having



2

asserted below and here the deprivation of rights secured 
by the Constitution and statutes of the United States.

Question 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 Caro­
lina, 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 obtained an 
order that petitioner be removed from the premises.

Under these circumstances, was petitioner denied rights 
granted by the due process clauses of the Fifth and Four­
teenth Amendments to the Constitution of the United 
States'?

Constitutional and Statutory Provisions Involved

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 the Appendix, 
infra, pp. la to 9a:

42 U.S.C. § 1401
42 U.S.C. § 1402
42 U.S.C. § 1404a



3

42 IJ.S.C. § 1410(g)
42 IJ.S.C. §1415(7)

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 the Appendix, infra, pp. 10a to 
22a:

N.C.G.S. §157-2 
N.C.G.S. §157-4 
N.C.G.S. §157-9 
N.C.G.S. §157-23 
N.C.G.S. §157-29

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 the Appendix, infra, pp. 23a to 27a:

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

Statement

On November 11, 1964, petitioner and her children be­
came tenants in McDougald Terrace, a low-rent public 
housing project owned and operated by the Housing Au­
thority of the City of Durham, North Carolina. The lease 
agreement under which petitioner has occupied the project 
had an initial term from November 11 to November 30, 
1964 (R. 11). The lease further provided that it would



4

thereafter be automatically renewed for successive terms 
of one month at a rental of $29 per month, provided there 
was no change in her income or family composition or 
violation of the terms of the lease (R. 12).

The Housing Authority of the City of Durham was 
established under North Carolina law and is “a public 
body and a body corporate and politic, exercising public 
powers,” Gen. Stat. of N.C. § 157-9. The Authority has 
“all the powers necessary or convenient to carry out and 
effectuate the purposes and provisions” of the North Caro­
lina Housing Authority law (§§ 157-1 et seq., Gen. Stat. 
of N.C.), 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, operation and/or management of a housing 
project,” Gen. Stat. of N.C. § 157-9. The Housing Author­
ity operates McDougald Terrace as a low rent housing 
project “under its statutory authority and pursuant to its 
contract with the Federal government” (R. 5).

On August 10, 1965, petitioner was elected president of 
the Parents’ Club, a group composed of tenants of the 
McDougald Terrace project (R. 6). The following day, 
August 11, 1965, the Housing Authority, through its ex­
ecutive director, delivered a notice that petitioner’s lease 
would be cancelled effective August 31, 1965, at which 
time she would have to vacate the premises (R. 5-6); 
petitioner received this notice on August 12, 1965 (R. 6). 
In the notification the Authority gave no reasons for its 
action but merely mentioned a provision of the lease that 
it claimed permitted the landlord to cancel upon fifteen 
days notice (R. 18).1 After she received the notice, peti­

1 The text o f the notice, dated August 11, 1965, is as follows:
Your Dwelling Lease provides that the lease may he cancelled upon 
fifteen (15) days written notice. This is to notify you that your



5

tioner, through her attorneys, by phone and by letter re­
quested a hearing to determine the reasons for her evic­
tion; the request was denied (R. 9). It was stipulated 
that “although the Housing Authority had a meeting on 
the subject the defendant was not given a hearing in 
which she herself was present and reasons assigned to 
her” (R. 6). Her attorney met with the Housing Authority 
and its executive director on September 1, 1965, and the 
attorney again asked for a hearing but the request was 
denied (R. 9). Petitioner averred, on information and 
belief, that on September 1, 1965, the Housing Authority 
held a meeting with a police officer who supplied informa­
tion allegedly obtained in an investigation of petitioner 
(R. 9). However, neither petitioner nor her attorney were 
present at this meeting, and she was not confronted with 
her accuser, informed of the information supplied to the 
Housing Authority, or given any opportunity to rebut 
any charges made against her (R. 9).

In evicting petitioner without giving a reason or a hear­
ing, the Housing Authority relied on a sentence in the 
lease which provides that: “The Management may termi­
nate this lease by giving to the Tenant notice in writing 
of such termination fifteen (15) days prior to the last day 
of the term” (R. 12). The lease, prepared by the Housing- 
Authority, also contained a variety of other provisions for 
termination. One provision states that the lease “ shall 
be automatically terminated at the option of the manage­
ment” with an immediate right of reentry and all notices 
required by law waived, if the tenant misrepresents a ma­
terial fact in his application or if “the tenant fails to 
comply with any of the provisions of this lease” (R. 16).

Dwelling Lease will be cancelled effective August 31, 1965, at which
time you will be required to vacate the premises you now occupy
(R. 18).



6

Among the enumerated provisions of the lease which a 
tenant must comply with, and which might support termi­
nation of the lease in the event of non-compliance, are 
agreements by the tenant, inter alia, to pay rent when due; 
to pay for damages to the premises; to pay a penalty for 
excess consumption of electricity, gas or water; not to 
assign the lease or sublet or accommodate boarders or 
lodgers or use the premises other than as a dwelling for 
the tenant and his family; to keep the premises in “a clean 
and sanitary condition” ; to “maintain the yard in a neat 
and orderly manner” ; to “assist in the maintenance of the 
project” ; “not to use the premises for any illegal or im­
moral purposes” ; not to keep dogs or pets; not to make 
repairs or alterations without consent; “to follow all rules 
or regulations prescribed by the Management concerning 
the use and care of the premises” ; to permit management 
to enter for repairs, etc.; to submit an annual income state­
ment to Management; and to notify Management “ of any 
increase or decrease in family income or of any change 
in family composition or assets” (R. 13-14). Another sec­
tion of the lease allows the Management to terminate on 
30 days notice at the end of any calendar month if the 
tenant’s income “exceeds the limits established for eligible 
occupancy” (R. 15). Still another section provides that the 
tenant will “promptly” vacate the premises if he falsely 
warrants that neither he nor any person who is to occupy 
the premises is a member of an organization listed as 
subversive by the Attorney General of the United States, 
or if he becomes a member of such an organization.

Despite the notice of cancellation of her lease, when she 
was given no reason and no hearing petitioner refused 
to vacate the premises. On September 17, the Housing 
Authority instituted a summary ejectment action against 
petitioner in the Justice of the Peace Court in Durham. 
See Gen. Stats, of N.C. §42-26 et seq., infra, pp. 23a-27a.



7

On September 20, the Justice of the Peace ordered that 
petitioner be removed from the premises (E. 4-5). Peti­
tioner appealed to the Superior Court of Durham County 
(R. 4), where evidence was submitted in the form of a 
stipulation and petitioner’s affidavit.

In the Superior Court petitioner filed a motion to quash 
the eviction proceedings and alleged therein that she had 
a right to her apartment and that a deprivation of that 
right without a hearing violated due process of law. Fur­
ther, it was alleged that the defendant’s eviction resulted 
primarily from her activities as a organizer of tenants 
(R. 10-11). These allegations were supported by peti­
tioner’s affidavit (R. 7-10). In the stipulation entered into 
between petitioner and the Housing Authority (R. 7-10), it 
was stipulated, inter alia, that the Housing Authority did 
not give petitioner a reason for its termination of the lease 
nor did it give her a hearing despite her request for one; 
that on August 10, 1965, defendant was elected president 
of the Parents Club and that the eviction notice was sent 
out on August 11, and that the executive director of the 
Housing Authority would testify, as he had testified before 
the justice of the peace, that

. . .  whatever reason there may have been, if any, for 
giving notice to Joyce C. Thorpe of the termination 
of her lease, it was not for the reason that she was 
elected president of any group organized in McDougald 
Terrace . . . and not for any of the other reasons set 
forth in the affidavit . . . (R. 7).

Finally, it was stipulated and agreed that the judge could 
determine the case by finding facts based on the stipula­
tion and affidavits, Ibid.

On the basis of the stipulation, the Superior Court made 
the finding:



8

That the plaintiff Housing Authority of the City of 
Durham . . . gave notice to the defendant to vacate 
said premises not because she had engaged in efforts 
to organize the tenants of McDougald Terrace, nor 
because she was elected president of a group organ­
ized in McDougald Terrace on August 19, 1965; that 
these were not the reasons said notice was given and 
eviction undertaken (R. 21).

The Court went on to find that the Housing Authority gave 
no reason to petitioner for terminating the lease and did 
not conduct any hearing at which the defendant was 
present or invited to be present to inquire into the reasons 
for terminating the lease and, further, that although the 
defendant requested a hearing, she had no hearing other 
than that “before the Justice of the Peace in this eviction 
action and in this Court” (R. 22). The Court then con­
cluded as a matter of law that the Housing Authority of 
the City of Durham had no duty to hold a hearing on the 
subject of petitioner’s eviction or to communicate or give 
to the defendant any reason for the termination. Thus, 
the Court affirmed the judgment of the eviction (R. 23).

Subsequently, petitioner appealed to the Supreme Court 
of North Carolina, raising as error the above findings of 
fact and conclusions of law (R. 25). On May 25, 1966, in 
a per curiam decision, the Supreme Court affirmed the 
order to evict. It held, in effect, that the Authority was 
under no obligation to conduct a hearing or advise the 
tenant of its reasons for terminating the lease, apparently 
since its obligations to its tenants were the same as the 
obligations of a private landlord. Thus, the Court said:

It is immaterial what may have been the reasons for 
the lessor’s unwillingness to continue the relationship



9

of landlord and tenant after the expiration of the term 
as provided in the lease (R. 26-28).

The petitioner and her children have remained in posses­
sion of their apartment under a stay granted by the Su­
preme Court of North Carolina, pending decision in this 
Court.

Summary of Argument

Petitioner was denied due process by the cancellation of 
her low-income public housing benefit without notice of the 
reason for eviction or any administrative hearing to contest 
the cancellation. Her claim arose on an assertion that her 
First Amendment rights were violated by the Housing Au­
thority of the City of Durham, an agency of the state and 
federal governments subject to constitutional restraints.

( The courts below upheld the claim of the Authority that 
it could act arbitrarily, without a reason, relying on prin­
ciples applicable to private landlords.

I.

Governmental agencies acting as landlords are neverthe­
less subject to Due Process restraints against arbitrary 
action. Nothing in either the federal or state statutes under 
which the Durham Authority was established confers an 
arbitrary power to evict. Indeed, arbitrary evictions sub­
vert the purposes of the federal-state program to protect 
low income citizens from the effects of inadequate slum 
housing.

* * * < * ■ +

Overriding constitutional concerns defeat any claim of 
arbitrary power to evict public housing tenants. The gov­
ernmental agencies plainly cannot evict for a variety of 
reasons under the Constitution, including racial or religions 
discrimination, suppression of free speech, or (as petitioner



1 0

charged) interference with the right of free association. 
Government may not condition the availability of public 
benefits so as to restrict First Amendment rights. Sherbert 
v. Verner, 374 U.S. 398; Speiser v. Randall, 357 U.S. 513. 
The general principle against arbitrary action by govern­
ment officials applies with equal force to government hous­
ing project managers who claim broad authority over the 
lives of those living in the projects. Tucker v. Texas, 326

Petitioner was entitled, at the bare minimum, to notice 
of the reason for the cancellation of her governmental 
benefit of low income housing. Notice of the ground for 
governmental action is basic to the concept of Due Process. 
Morgan v. United States, 304 U.S. 1; Willner v. Committee 
on Character & Fitness, 373 U.S. 96. The authority has no 
substantial interest in secrecy. Disclosure would promote 
responsible action by the agency and insure that there is 
a reason for its action. Secrecy merely shields arbitrari­
ness. The petitioner’s interest in low-income housing is 
precious. When denied decent housing she is remitted to 
the misery of the slums, a penalty which may be “an almost 
insufferable burden,” Berman v. Parker, 348 U.S. 26, 32.

The housing agency may not make surrender of the right 
to notice a condition of tenancy because of the doctrine 
forbidding imposition of unconstitutional conditions as the 
price of governmental benefits. Sherbert v. Verner, 374 
U.S. 398; Speiser v. Randall, 357 U.S. 513; cf. Frost Truck­
ing Co. v. Railroad Commission, 271 U.S. 583. In any event, 
the lease was not a clear and explicit waiver of the right 
to notice of a reason for cancellation. Indeed, the lease 
should be construed to require the housing management to 
give a reason for eviction. The lease may be construed by



1 1

tiiis Court under federal principles of law. Clearfield Trust
Co. v. United States, 318 U.S. 363.

III.
Petitioner was entitled to an administrative hearing. An 

opportunity to offer proof when factual issues determine 
vital interests is basic to due process in administrative 
proceedings. The rule that a hearing is a fundamental re­
quirement to preserve Due Process—freedom from arbi­
trary, capricious or discriminatory official action—has been 
developed in a variety of contexts. Japanese Immigrant 
Case (Yamataya v. Fisher), 189 U.S. 86; Londoner v. Den­
ver, 210 U.S. 373; Southern R. Co. v. Virginia, 290 U.S. 
190; l.G.C. v. Louisville & N. R. Co., 227 U.S. 88; Morgan 
v. United States, 304 U.S. 1; Slochower v. Board of Higher 
Education, 350 U.S. 551; Dixon v. Alabama State Board 
of Education, 294 F.2d 150 (5th Cir. 1961); WiUner v. Com­
mittee on Character & Fitness, 373 U.S. 96.

By each of the tests stated by Mr. Justice Frankfurter 
in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 
123, 163 (concurring opinion), petitioner is entitled to a 
hearing. Her injury is potentially grave; she has been 
treated arbitrarily. The Durham Housing Authority has 
statutory powers to conduct a hearing, including issuing 
subpoenas, administering oaths, and other incidents of fair 
procedure. Petitioner’s First Amendment claim should be 
decided only after rigorous procedural safeguards. Such 
safeguards are needed to insure against arbitrariness.

Rejection of the right to a hearing on the basis of the 
lease provision was improper. The lease contained no ex­
press waiver of a hearing. For the government agency to 
require waiver of a hearing to obtain low-income housing 
is to impose an unconstitutional condition. Sherbert v. 
Verner, 374 U.S. 398; Speiser v. Randall, 357 U.S. 513.



1 2

ARGUMENT

Petitioner Was Denied Dee Process of Law by Her 
Eviction From a State and Federally Supported Low- 
Income Housing Project in the Absence of Any Pro­
cedures to Give Her Any Notice of the Reason for the 
Eviction or Any Hearing to Contest the Basis for the 
Governmental Action.

In trod u ction

This case involves whether a municipal housing author­
ity, acting as the agent of both the state and federal gov­
ernments, violates the due process clauses of the Fifth 
and Fourteenth Amendments,2 when it terminates housing 
benefits it is charged by law to furnish to a citizen, with­
out affording the citizen either a statement of the reason 
for cancellation, or a hearing to contest its action. The 
case arises in the context of an assertion that petitioner 
was evicted to punish her exercise of First Amendment 
rights to freedom of association.

Although it is incontestable that the Housing Authority 
of the City of Durham is a governmental agency subject 
to the restraints of the Constitution, the Supreme Court of 
North Carolina decided that no procedural protection 
was required. Without mentioning the governmental char-

2 The Due Process Clause of the Fourteenth Amendment applies to the 
Housing Authority of the City of Durham, because it is a state agency, 
established and operated in accordance with state law (R. 5; Gen. Stats, 
o f N.C. §157-9). The Due Process Clause o f the Fifth Amendment is 
also applicable because the Authority acts as an “agent for the federal 
government” (Gen. Stats, of N.C. § 157-9) in the operation and man­
agement of the housing project pursuant to a contract with the Federal 
Government (R. 5). By law the Authority is a “ public body and a body 
corporate and politic, exercising public powers”  (Gen. Stats, o f N.C. 
§157-9) {infra, Appendix, p. 14a).



13

acter of the agency, the Court applied to it the same legal 
principles that it would apply to a private non-govern­
mental landlord. The State Court thus sanctioned and 
enforced the Authority’s action cancelling petitioner’s bene­
fits under the public housing laws at its mere will or whim. 
It reasoned that petitioner had no rights to the housing 
except those conferred by her lease; that under the lease 
the Housing Authority had the right to terminate; and 
that 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” (R. 28).

On this record it cannot be assumed that the Authority 
acted on any reasonable ground. Rather, it was testing 
its right to be arbitrary, capricious and unreasonable, and 
the Court thus sanctioned wholly arbitrary governmental 
action. This, we submit, is the net effect of the proceed­
ings below, which included: (1) petitioner’s affidavit that 
she was evicted the day after she was elected President 
of a tenant organization and that she believed the reason 
was an official’s opposition to her effort to organize tenants 
(R. 8); (2) the official’s stipulated testimony that his rea­
son “if any” was not the reason alleged by plaintiff (R. 7); 
(3) the trial court’s decision that the authority had no 
“duty to communicate or give . . . any reason” (R. 23) ; (4) 
confirmed by the appellate decision that the reason “is 
immaterial” (R. 28). Plainly, the case was viewed by the 
parties and the courts below as a test of the right of the 
Authority to evict arbitrarily and without any reason, any 
statement of a reason, or any hearing on the reason or 
lack of a reason.

Petitioner urges in detail below that the result reached 
in the state courts is inconsistent with the requirements of 
Due Process. We urge, first, that the Constitution pre-



14

eludes arbitrary, discriminatory or capricious action to 
withhold from an individual the benefits of the state-federal 
public housing program for the poor. Second, we submit 
that a minimum necessary protection against arbitrary 
action is that the Housing Authority be required to re­
veal the reason for its action. Third, we assert that due 
process requires that tenants in low-income governmentally 
operated projects be given some opportunity to be heard 
in order to offer such proof as may be appropriate to con­
test the asserted factual basis for the government’s evic­
tion orders.

I.
Public Housing Agencies May Not Evict Tenants 

Arbitrarily.

We urge that the Court reject the Durham Housing 
Authority’s claim of an absolute and arbitrary power to 
deny the benefits of its program for low-income families 
at its mere will or whim. Such a claim comes late, far too 
late, in our constitutional history.3 As a unanimous Court 
said in 1886: “When we consider the nature and the theory 
of our institutions of government, the principles upon which 
they are supposed to rest, and view the history of their 
development, we are constrained to conclude they do not 
mean to leave room for the play and action of purely 
personal and arbitrary power.” Yick Wo v. Hopkins, 118 
U.S. 356, 369. The essence of Due Process is “the protec­
tion of the individual against arbitrary action.” Ohio Bell 
Telephone Co. v. Public Utilities Com., 301 U.S. 292, 302 
(Mr. Justice Cardozo); Slochower v. Board of Higher Edu­
cation, 350 U.S. 551, 559. This was stated with clarity in 
its application to a government housing authority in Rud-

Cf. Sherbert v. Verner, 374 U.S. 398, 404-405, and cases cited.



15

der v. United States, 226 F.2d 51, 53 (D.C. Cir. 1955), where 
Judge Edgerton wrote:

The government as landlord is still the government. 
It must not act arbitrarily, for, unlike private land­
lords, it is subject to the requirements of due process 
of law. Arbitrary action is not due process.

Similar reasoning has been followed—and we think rightly 
so—by state courts in New Jersey, California, Wisconsin 
and Illinois, holding that public housing authorities are 
subject to the Due Process Clause. Kutcher v. Housing 
Authority of Newark, 20 N.J. 181, 119 A.2d 1 (1955); 
Housing Authority of Los Angeles v. Cordova, 130 Cal. 
App.2d 883, 279 P.2d 215 (App. Dept. Super. Ct. 1955); 
Lawson v. Housing Authority of City of Milwaukee, 270 
Wise. 269, 70 N.W. 2d 605 (1955), cert, denied, 350 U.S. 882 
(1955); Chicago Housing Authority v. Blackman, 4 111. 2d 
319, 122 N.E. 2d 522 (1954). Cf. Williams v. City of Ypsi- 
lanti, Civil Action No. 28936, D.Mich., 1966 (Temporary 
injunction barring eviction of woman who had an illegiti­
mate child); Holt v. Richmond Redevelopment and Hous­
ing Authority, Civil Action No. 4746, E.D. Va,, Sept. 7, 
1966. The Housing Authority’s claim to arbitrary power 
must be found wanting for a host of reasons.

There is nothing in either the federal4 or state acts6 
creating the publicly supported low-income housing pro­
gram administered by the Durham Authority which ex­
pressly confers an arbitrary power to evict, or otherwise 
withhold the benefits of the program. Neither of the two 
provisions of the federal law which authorize the local

4 The United States Housing Act of 1937, as amended, 42 U.S.C. §1401 
et seq., p. la , Appendix, infra.

6 The North Carolina "Housing Authorities Law,”  Gen. Stats, o f North 
Carolina, § 157-1 et seq., p. 10a, Appendix, infra.



1 6

agencies to require tenants to move from low-income 
projects (42 U.S.C. §1410(g)(3) and 42 U.S.C. §1404a) 
grants arbitrary power; both provisions are related to a 
policy of limiting occupancy to low-income families. The 
only provision of the state “Housing Authorities Law” 
about tenant selection also refers only to the income lim­
itation (Gen. Stats. NIC. §157-29). The text of 42 U.S.C. 
§1410 (g) (3) (Appendix, infra, p. 7a), makes plain that it 
relates only to enforcement of maximum income limitations 
in low-income projects.6 The other provision, 42 U.S.C. 
§1404a, serves this same purpose, although the purpose 
becomes completely apparent only from review of the 
legislative history. Section 1404a, provides, inter alia:

Notwithstanding any other provisions of law except 
provisions of law enacted after August 10, 1948 ex­
pressly in limitation hereof, the Public Housing Ad­
ministration, or any State or local public agency 
administering a low-rent housing project assisted pur­
suant to this chapter or sections 1501-1505 of this title, 
shall continue to have the right to maintain an action 
or proceeding to recover possession of any housing 
accommodations operated by it where such action is 
authorised by the statute or regulations under which 
such housing accommodations are administered, and, 
in determining net income for the purposes of tenant 
eligibility with respect to low-rent housing projects 
assisted pursuant 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

6 The provision, added in 1961, 75 Stat. 164 (Act of June 30, 1961, 
Section 205) states that federal contribution contracts must provide that 
local agencies make periodic reexaminations of tenant’s incomes and re­
quire tenants above the maximum income limits to move from the project, 
except in special circumstances.



17

thereof paid by the United States Government for dis­
ability or death occurring in connection with military 
service. (Emphasis supplied.)

The history of the provision, and its statutory predecessor 
amply demonstrates that §1404a was enacted to allow 
eviction of tenants above the income limits for low-income 
projects; nothing in the legislative history supports a 
claimed power to evict without cause.7 There is no in-

7 The quoted provisions of section 1404a were enacted in the Housing 
Act of 1948, Title Y, §502 (b), 62 Stat. 1284. This was a reenactment, 
with slight changes of wording, of a provision adopted a year earlier in 
the Housing and Rent Act of 1947, Title II, §209 (b), 61 Stat. 201.

Senator Ellender, who introduced the Section as an amendment made 
clear that the purpose was to permit evictions to enforce the income limi­
tations :

“ Mr. B uck . A s I understand the amendment, it would permit the 
Housing Authority to remove from public housing units tenants who 
are now earning an income greater than that which would enable 
them to qualify for occupancy o f low-cost public housing units V’ 

“ Mr . E llender. That is correct. . . . There are many tenants in some 
of the public housing projects at the moment who can pay an eco­
nomical rent. . . . [T]he purpose of the amendment is to make it 
possible for the authorities in charge of public housing to be able 
to evict those who are not entitled to be there.”  93 Cong. Bee. 6044 
(1947).

One month after the 1947 version was enacted, Congress passed a law 
allowing local ag’encies to postpone the commencement of eviction pro­
ceedings until March 1, 1948, if undue hardship would result for the 
occupants. Aet of July 31, 1947, C.418, §2, 61 Stat. 705, (formerly 42 
U.S.C. §1413a).

As indicated the 1948 version was basically a reenactment o f the pro­
vision inserted in 1947. The 1948 version was proposed by a Senate sub­
committee; tbe chairman made clear that it was a “ provision for the 
eviction of over-income tenants.”  94 Cong. Rec. 9867 (1948) (remarks 
of Senator McCarthy) :

. . . [W ]e also have a provision for the eviction of over-income 
tenants in the present 190,000 public housing units. We do not 
provide that they must be evicted instanter. We provide that the 
F.P.H.A., the local housing agency, shall evict them in an orderly 
manner, and I  understand they have a program of evicting 5 per 
cent each month on 6 month’s notice.



18

dication that Congress made a judgment to grant arbitrary 
power.

Furthermore, the claim of arbitrary power is inconsis­
tent with the expressed purposes of the state-federal 
low-income housing program. The policy of the United 
States is :

. . .  to promote the general welfare of the Nation 
by employing its fund and credit, . . .  to assist the 
several States and their political subdivisions to al­
leviate 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. 42 
U.S.C. §1401.

The North Carolina enactment contained an even more 
detailed declaration of the necessity of the program for 
low-income housing to correct conditions which it found 
“cannot be remedied by the ordinary operation of private 
enterprise.” Gen. Stats. N.C. § 157-2 (reprinted Appendix, 
infra, p. 10a).8 * Indeed, there must be specific findings as to 
the need for low income housing in order for a municipality 
to establish a housing authority under the North Carolina 
law (Gen. Stats, of N.C. § 157-4), or for such an authority 
to obtain federal funds (42 U.S.C. §1415(7)). The state 
and federal statutory schemes make it plain that the 
public housing agencies are not acting as private land­
lords, furnishing housing as business proprietors. The 
program is rather an exercise of the general governmental 
power to protect the health, safety, and welfare of an

8 See also the similar declarations in Gen. Stats, o f N.C. §§157-40,
157-48.



19

economically disadvantaged segment of the citizenry.9 The 
initiation of the program rested on explicit recognition 
of the fact that without public housing large number of 
persons would be condemned to live in urban and rural 
slums, suffering all the injuries stemming from unsafe and 
unsanitary dwellings.10

A power to evict tenants of public housing capriciously 
or without a reason is not merely inconsistent with the 
purposes of the program; it actually undermines and sub­
verts them. Such arbitrary power necessarily places pub­
lic housing tenants in “a state of insecurity,” as the com­
mentators have observed.11 ’Thus, the intended benefits— 
family stability and security in a decent and safe environ­
ment—are negated. This naturally reduces the attractive­
ness of public housing for slum residents, even though 
housing is their primary problem.12 More directly, of

9 As stated in Powell v. Eastern Carolina Regional Housing Auth., 251 
N.C. 812, 112 S.E.2d 386, 387, “ The Legislature authorized the creation 
of housing authorities as a means of protecting low-income citizens from 
unsafe or unsanitary conditions in urban or rural areas, G.S. § 157-2.”

10 Gen. Stats, o f N.C. § 157-2, found, inter alia, “ the existence o f hous­
ing conditions which endanger life or property by fire and other causes” , 
and 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. . . . ”

11 Reich, Individual Rights and Social W elfare: The Emerging Legal 
Issues, 74 Y ale L. J. 1245, 1250. As observed by Alvin Schorr of the 
U. S. Dept, o f Health, Education, and Welfare, some tenants find housing 
regulations and penalties “ to be precisely a confirmation of their greatest 
anxiety, that they were being offered decent housing in exchange for their 
independence.”  Schorr, Slums and Social I nsecurity (Dept, of H.E.W. 
Research Report No. 1), p. 112 (U.S. Govt. Printing Office, Washington, 
D. C. 1963).

12 Studies indicate the distaste of slum residents for the rules, regula­
tions and control over their lives which accompany public housing, and 
the marked lack of desire o f many eligible slum residents to move to 
public housing. Sternlieb, T he T enement L andlord, Rutgers LTniv. Press 
(1965), pp. 14-15; Millspaugh, Problems and Opportunities of Reloca­
tion, 26 Law  & Contemp. P rob. 6, 11-12 (1961).



20

course, every actual exercise of an arbitrary power to 
evict a public bousing tenant, remits the tenant and his 
family to the slums, subjecting them to all the injuries 
stemming from residence in unsafe and unsanitary dwel­
lings, which the program is supposed to prevent.

Of course, putting aside the provisions and purposes of 
the housing acts, there are overriding constitutional con­
cerns which make it plain that the claimed right to act 
for any reason, or for no reason, must fail. There plainly 
are some reasons which could not constitutionally support 
housing authority action. For example, it has been widely 
held that a public housing authority violates the Four­
teenth Amendment by a policy of refusing to lease units 
to qualified Negroes because of their race. Detroit Hous­
ing Commission v. Lewis, 226 F.2d 180 (6th Cir. 1955).13 
Race, or a desire to enforce racial segregation, must 
equally be a forbidden ground for eviction from a govern­
ment project, lest the power to discriminate be absolute.

It should be equally be made clear that a public housing 
authority may not bar citizens on the basis of their reli­
gion, or their ideas on public issues in violation of First 
Amendment guarantees. Petitioner’s case arises not from 
a racial discrimination claim, but, rather, in the context 
of her assertion that she is being punished for exercising 
First Amendment rights of free association in a tenant’s

13 Other such cases are Jones v. City of Hamtramck, 121 F. Supp. 123, 
(E.D. Mich. 1954) ; Vann v. Toledo Metropolitan Housing Authority, 113 
F. Supp. 210 (N.D. Ohio 1953); Banks v. Housing Authority of City 
and County of San Francisco, 120 Cal. App.2d 1, 260 P.2d 668 (1953), 
cert, denied, 347 U.S. 974 (1954); Taylor v. Leonard, 30 N.J. Super. 
116, 103 A.2d 632 (1954). See Executive Order No. 11063, 27 Fed. Reg. 
11527 (1962), prohibiting racial discrimination in federally assisted hous­
ing. And see Title V I of the Civil Rights Act of 1964, 78 Stat. 252, 42 
U.S.C. § 2000d, and the implementing regulations (24 C.F.R., Subtitle A, 
Part 1) prohibiting discrimination in federally assisted programs, includ­
ing low-rent housing projects.



21

organization. This Court’s decisions expressing concern 
for the procedures by which First Amendment claims 
are determined (ef. Speiser v. Randall, 357 U.S. 513), 
leave no room for an absolute power to conceal violations 
of the Amendment. This Court has condemned rules which 
condition the availability of public benefits so as to re­
strict First Amendment rights. In Sherbert v. Verner, 
374 U.S. 398, 404, the Court said:

It is too late in the day to doubt that the liberties 
of religion and expression may be infringed by the 
denial of or placing of conditions upon a benefit or 
privilege. American Communications Asso. v. Douds, 
339 U.S. 382, 390; Wieman v. Updegraff, 344 U.S. 
183, 191, 192; Hannegan v. Esquire, Inc., 327 U.S. 146, 
155, 156. . . . In Speiser v. Randall, 357 U.S. 513, we 
emphasized that conditions upon public benefits cannot 
be sustained if they so operate, whatever their purpose, 
as to inhibit or deter the exercise of' First Amendment 
freedoms.

The principle was applied in Speiser v. Randall, 357 
U.S. 513, to invalidate state action limiting the availability 
of a tax exemption in a manner which inhibited free 
speech. The rule is necessary lest the State “produce a 
result which . . . [it] could not command directly” 357 
U.S. at 526. Applying these principles, we submit that 
it could not be gainsaid that a public housing authority 
could not bar a citizen from occupancy in a project for 
failure to make a religious oath (ef. Torcaso v. Watkins, 
367 U.S. 488), or for refusal to make an unconstitutionally 
vague oath (cf. Cramp v. Board of Public Instruction, 368 
U.S. 278, 288), or to punish innocent membership in a 
proscribed organization (cf. Wieman v. Updegraff, 344



2 2

XJ.S. 183, 192),14 or to suppress freedom of association 
to advance political views (cf. N.A.A.C.P. v. Button, 371 
XJ.S. 415). There is no reason whatever to suppose that 
the restraints of the Constitution do not apply with equal 
force to the manager of a federally operated or supported 
housing project. T-ucher v. Texas, 326 U.S. 517.

Tucker v. Texas, supra, held that the manager of a fed­
eral housing development for defense workers unconstitu­
tionally suppressed the distribution of religious literature 
by seeking to exercise a licensing power. This manager 
had claimed “full authority to regulate the conduct of 
those living in the village” (326 XJ.S. at 519), in support 
of his order that a Jehovah’s Witness discontinue all re­
ligious activity in the village (id.). The Court rejected the 
claim of arbitrary power over freedom of the press and 
religion and reversed state criminal convictions which en­
forced the manager’s invalid assertion of authority over 
the tenants’ lives.

We submit that reason and authority reject the Durham 
Authority’s claimed right to act unreasonably in termi­
nating the benefits of the program it administers. Of 
course, the Authority, like other governmental agencies, 
may constitutionally be given a substantial degree of con­
trol over the use and occupancy of its projects, to effi­
ciently manage and fulfill the purposes of its program. 
We do not stop to fully explore the detailed scope of the 
Authority’s power to make, and to enforce by evictions, 
rules for the conduct of tenants needed to protect its prop­
erty and other tenants, because no one would deny that

14 The Court said in Wieman {supra, 344 U.S. at 192) :
We need not pause to consider whether an abstract right to public 
employment exists. It is sufficient to say that constitutional protec­
tion does extend to the public servant whose exclusion pursuant to a 
statute is patently arbitrary or discriminatory.



23

the Authority must have powers to accomplish these ends. 
The issue herefis not whether a public housing agency may 
evict on a reasonable ground, or whether or not a particu­
lar ground is reasonable. The issue is whether a govern­
ment agency may evict for

ft®  aa^eiews reason, recognizing that the power to be ca­
pricious includes a practical power to act for reasons 
specifically forbidden by the Constitution. The answer to 
that question must be negative if there is to be any pro­
tection at all for the civil rights and civil liberties of pub­
lic housing tenants. Rudder v. United States, 226 F.2d 51 
(D.C. Cir. 1955). Otherwise, minor bureaucrats—housing 
project managers—are granted “full authority to regulate 
the conduct of those living in the [project].” Tucker v. 
Texas, 326 U.S. 517, 519.

So we now turn to another vital question. What does 
procedural due process require to give protection against 
discriminatory, arbitrary, capricious and unconstitutional 
action terminating public housing benefits?

II.

Petitioner Was Entitled to Notice o f the Reason Her 
Low-Income Housing Benefits Were Cancelled.

Whatever may be decided with respect to petitioner’s 
claim (discussed in Part III below) that she had a right 
to a hearing before eviction, petitioner was at the very 
least entitled to notice of the reason, if any, for the Hous­
ing Authority’s action requiring her to move from the 
project. Notice of the reasons for proposed governmental 
action adversely affecting a citizen’s interests has been 
regarded as an essential element of due process in a 
variety of contexts. Willner v. Committee on Character &



24

Fitness, 373 U.S. 96, 105-106; Morgan v. United States, 304 
U.S. 1, 18, 19; cf. Gonzales v. United States, 348 U.S. 407. 
If there is even to be any potential protection against 
arbitrary action by public housing officials, the officials 
must at the very least be required to formulate and articu­
late a reason for an eviction, and notify the tenant of that 
reason in writing. Notice of reasons would at least offer 
a possibility of relief if an official is mistaken about the 
facts and he or some reviewing authority can be persuaded 
that he is mistaken, or if the official is mistaken about the 
law and it can be shown that the proposed action violates 
the law, or if the official acts contrary to policy estab­
lished by superior administrative officials. A requirement 
that the housing agency state its reason for terminating- 
low income benefits serves the salutary function of re­
quiring that the agency act responsibly and actually have 
a reason. It is a protection against capricious action.

The Authority has no substantial interested to be served 
by keeping its reason secret. Such secrecy does nothing to 
further the purposes of the state-federal program to pro­
vide housing assistance to the poor. We have seen no 
proffered justification for a policy of secrecy. If the Hous­
ing Authority has a good reason for evicting a tenant, 
there is no impediment to its stating that reason and rely­
ing on it as the basis for eviction. There are no consider­
ations of immediate danger to the public or of peril to the 
National Security or other similar factors which might 
justify the Authority’s reluctance to give tenants notice 
of the reasons for eviction. The Authority’s refusal to 
accord its tenants reasonable protection can only help to 
break the spirits of the evicted tenants, and of other mem­
bers of the community familiar with the injustice, and 
increase the apathy and despair of the impoverished. The 
policy of secrecy serves only as a shield for arbitrariness.



25

It is, of course, more convenient for a bureaucrat to have 
arbitrary power and to be unaccountable for his acts. But 
as Mr. Justice Frankfurter put it: “ Secrecy is not con­
genial to truth-seeking and self-righteousness gives too 
slender an assurance of rightness.” Joint Anti-Fascist 
Refugee Committee v. McGrath, 341 U.S. 123, 171 (con­
curring opinion). Indeed, it is in the “manifest interest” 
of government agencies to be fair, and to appear to be 
fair, in their dealings with citizens they are charged with 
assisting. Cf. Morgan v. United States, 304 U.S. 1, 22. A 
policy of secrecy in evictions sacrifices the deterrent value 
which might be gained from announced enforcement of 
reasonable rules and regulations, and merely promotes 
generalized fear and insecurity on the part of tenants.

The tenant of public low income housing has a strong 
interest in continued eligibility for public housing benefits 
and in being informed of the reason the authorities may 
have for cancelling such benefits. The value of the tenant’s 
interest in public housing may be measured by the govern­
mental findings which justify providing the benefits (42 
U.S.C. §1401; Gen. Stats, of N.C. §157-2). The essence of 
the matter is that the tenant is provided public housing 
only because he would be otherwise unable to obtain decent 
and sanitary housing, and when the tenant is denied 
decent housing he is remitted to slums, including:

. . . such unsafe or unsanitary conditions [that] arise 
from overcrowding and concentration of population, 
the obsolete and poor condition of the buildings, im­
proper 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; * * * [which] con­
ditions cause an increase in and spread of disease and



26

crime and constitute a menace to the health, safety, 
morals and welfare of the citizens of the State and 
impair economic values . . . ” (Gen. Stats, of N.C. 
§157-2).

The federal and state governments have found that un­
less they provide Mrs. Thorpe and others in her economic 
position decent and sanitary housing, they will be con­
demned to live in slum conditions which pose a constant 
threat to their health, safety and morals. Thus, the inter­
est of petitioner is no less than the interest in being able 
to live at a minimum level of decency and comfort. And, 
of course, petitioner, and society in general have an inter­
est in her freedom to exercise her rights of free speech 
and free association without fear of a crushing reprisal.

The effect of being remitted to live in slum conditions 
can be incalculable. It is punishment in a real sense. The 
impact of such decisions on the children of the poor may 
influence the entire course of their lives. And where a 
Negro family is involved, as in petitioner’s case, a return 
to the slums may quite likely mean a return to a racial 
ghetto. This Court described the problem in Berman v. 
Parker, 348 U.S. 26, 32, where Mr. Justice Douglas wrote:

Miserable and disreputable housing conditions may do 
more than spread disease and crime and immorality. 
They may also suffocate the spirit by reducing the 
people who live there to the status of cattle. They 
may indeed make living an almost insufferable burden.

The tenant’s interest in knowing the grounds for eviction 
is compelling. This minimal protection against arbitrari­
ness may at least afford a channel for relief in some cases 
of injustice. Knowing the ground for the official action 
may afford a basis for informal complaint or request for



27

reconsideration, for an appeal to higher executive author­
ity, for an appeal for legislative reform or relief, or for 
an appeal to the courts. Minimal fairness requires that 
petitioner be apprised of the reason for a curtailment of 
benefits she is entitled to receive under a program of bene­
fits for poor persons. Petitioner is entitled to know the 
claims of those who would deprive her of governmental 
benefits. Morgan v. United States, 304 U.S. 1. The right 
to know a reason for official action is vital so long as 
there remains any conceivable method, however informal, 
of influencing that action. Gonzales v. United States, 348 
U.S. 407, illustrates the point. In Gonzales, supra, a draft 
registrant was held entitled to have a copy of an “advisory 
recommendation” made by the Department of Justice to 
his Selective Service Appeal Board, and to an opportunity 
to file a reply. Though there was no hearing before the 
appeal board and the statute involved was silent on the 
right to know the recommendations, the Court found that 
this right was implicit in the Act “viewed against our 
underlying concepts of procedural regularity and basic 
fair play” (348 U.S. at 412).15

The great value to a tenant of a rule requiring that the 
Housing Authority disclose its asserted justification for 
eviction is demonstrated by a recent case involving claims 
similar to petitioner’s. In Holt v. Richmond Redevelop­
ment and Housing Authority, Civil Action No. 4746, E.D. 
Va., September 7, 1966, a tenant sued under 42 U.S.C. §1983 
to restrain his eviction from a public housing project on 
the ground that the authority’s purpose was to punish 
him for his tenant-organizing activities. The housing au­
thority answered by asserting that the reason for eviction

16 Cf. Simmons V. United States, 348 U.S. 397, finding a deprivation 
of the fair hearing required by the selective service law in the failure 
to furnish a fair resume of an adverse FBI report considered by the 
hearing officer.



was the plaintiff’s failure to report all of his income in 
violation of a lease provision, and not his organizing ac­
tivities. The plaintiff then proved the circumstances con­
cerning his income and his organization’s disputes with 
the authority. The Federal District Court (Butzner, J.) 
found the authority’s asserted reason for eviction un­
founded, and that the actual reason was plaintiff’s con­
stitutionally protected activity, and restrained the evic­
tion. Holt, supra, clearly shows the vice of the rule (ap­
plied in this case) that the reason for eviction is “imma­
terial.”

28

In the Brief in Opposition to the petition for certiorari 
respondent suggests that petitioner could have learned the 
“motives, if any, for the eviction,” in the course of the 
summary ejectment proceedings, by cross-examination of 
the housing director either during trial or by pre-trial 
discovery. (Brief in Opposition, pp. 7-8). But the courts 
below never rested on this ground. They took the view 
that the Housing Authority had no duty to communicate 
a reason (R. 23), and that the reason was “immaterial” 
in a determination of the Authority’s right of possession 
(R. 28). The case was tried as a test of the Authority’s 
right to act without a reason, as clearly indicated by the 
stipulation that the Housing Director would testify, as he 
had before the Justice of the Peace that “whatever rea­
son there may have been, if any, for giving notice . . . it 
was not for the reason” of petitioner’s organizing activi­
ties. (Emphasis supplied). There was no suggestion that 
the Authority had any reason which it was prepared to 
divulge and rely on. Finally, petitioner urges that dis­
closure in court would not in any event cure the failure 
to give a reason at the time her benefits were cancelled. 
An important ground for requiring that the Authority 
state a reason is to insure that the Authority will actually



29

formulate a reason and act responsibly in cutting off gov­
ernmental benefits. This objective is not accomplished by 
disclosure of a reason for the first time in court, when the 
reason may be merely a post facto attempt to justify that 
which was done for no good reason. Low-income housing 
officials deal with tenants who are impoverished, and are 
often ignorant of their rights. The tenants will not often 
know whether to resist an order to move unless they know 
the grounds of the agency’s action. They will rarely have 
lawyers or the resources to go to court to find out why 
they are being evicted. They should at least be told why 
they are being subjected to eviction—a punishment that 
is real and severe.

The courts below decided that petitioner had no right to 
be informed of the grounds for eviction by relying on the 
provisions of the lease. This was, in effect, a ruling that 
petitioner had waived the claimed constitutional right to 
notice of the reason for eviction. Conceding, arguendo, that 
the lease permits eviction arbitrarily and unconstitution­
ally, we urge that the government may not validly exact 
such an unconstitutional condition as the price of obtain­
ing low-income public housing benefits. The state-federal 
agency may not exact surrender of the right to be treated 
fairly and reasonably as the price of the opportunity to ob­
tain decent quarters under a government program for the 
poor. In Sherbert v. Verner, 374 U.S. 398, 404, this Court 
held that a state could not condition the granting of un­
employment benefits on the surrender of First Amendment 
rights to the free exercise of religion. The rule against un­
constitutional conditions protected free speech in Speiser 
v. Randall, 357 U.S. 513. The rule proscribing the imposi­
tion of unconstitutional conditions has also been applied in 
cases that involved: use of public highways, Frost Truck­
ing Company v. Railroad Commission, 271 U.S. 583; foreign



30

corporations doing business in a state, Hanover Fire Ins. 
Co. v. Harding, 272 U.S. 494; Wheeling Steel Corf. v. Glam- 
der, 337 U.S. 562; and public employment, see, Torcaso v. 
Watkins, 367 U.S. 488; Shelton v. Tucker, 364 U.S. 479; 
United Public Workers v. Mitchell, 330 U.S. 75, 100. See 
also, Slochower v. Board of Education, 350 U.S. 551, 555; 
Wieman v. Updegraff, 344 U.S. 183, 191. And see, O’Neil, 
Unconstitutional Conditions: Welfare Benefits with Strings 
Attached, 54 Calif. L. Rev. 443 (1966).

As the United States Court of Appeals for the Fifth 
Circuit said in Dixon v. Alabama State Board of Educa­
tion, 294 F.2d 150 (5th Cir. 1961), upholding the right of 
students to a hearing before expulsion from a public col­
lege for alleged misconduct: “the right to notice and a 
hearing is so fundamental to the conduct of our society 
that the waiver must be clear and explicit” 294 F.2d at 
157. Cf. Johnson v. Zerbst, 304 U.S. 458. The alleged 
waiver of notice of the reasons for eviction in Mrs. Thorpe’s 
lease, is by no means “clear and explicit.” There is nothing 
in the lease which expressly grants the right to evict 
without stating a reason. Indeed, we submit that—far from 
supporting a finding of waiver—ordinary principles of 
interpretation support a holding that this lease does re­
quire that a ground for eviction be stated in writing. This 
follows from any effort to read the variety of provisions 
allowing the management to terminate so that they are 
mutually consistent.

The lease states that it “ shall be automatically renewed 
for successive terms of one month each” at a rental of 
$29, provided, “there is no change in the income or com­
position of the family of the tenant and no violation of 
the terms hereof” (R. 12). The lease has four provisions 
for termination by management: one allows termination 
on 30 days notice; another requires only 15 days notice;



31

another provides termination “automatically at the option 
of the management” without notice; and, another requires 
the tenant to vacate “promptly.” 16 Unless the lease re­
quires written notice of the reason for eviction, the tenant 
cannot know how much notice he is entitled to receive. The 
lease clearly does not contemplate, for example, that a 
tenant be evicted on no notice, or on only fifteen days 
notice, if the manager’s reason is that the tenant’s income 
makes him ineligible. And, similarly, it does not contem­
plate eviction on fifteen days notice, or at all, if the manager 
believes that the tenant’s income makes him ineligible when 
the actual facts are otherwise. Merely to insure that the 
tenant gets what he “bargains” for (if we may use that 
inapplicable word in this context), the lease may be, and

161. Management “ may terminate this lease by giving to the Tenant 
notice in writing of such termination fifteen (15) days prior to the last 
day of the term” (R. 12).

2. I f  management determines that a tenant’s income exceeds the limits 
for eligible occupancy it “may terminate at the end of any calendar month 
by giving the Tenant not less than 30 days’ prior notice in writing” 
(R. 15).

3. I f  a tenant is a member o f an organization designated as subver­
sive by the Attorney General of the United States he must vacate the 
premises “ promptly”  (R. 17).

4. I f  a tenant makes misrepresentations in his application or if he 
“ fails to comply with any of the provisions of”  the lease, it is “ auto­
matically terminated at the option of the management” and the tenant 
“ waives all notice required by law”  and management may “ immediately 
re-enter said premises and dispossess the Tenant without legal notice or 
the institution of any legal proceedings whatsoever”  (R. 16).

The host o f provisions the tenant must comply with include, inter alia, 
duties: to pay rent when due; to pay for damages and excess consump­
tion of gas, water and electricity; to use the premises only for a dwell­
ing; to keep the premises clean; not to keep dogs; to follow rules and 
regulations; to submit an annual income statement; and to promptly 
notify management of any increase or decrease in family income or any 
change in family composition or assets (R. 13-14). There are numerous 
other such provisions (ibid.).



32

should be, read to require that management state a reason 
for a purported termination of the lease.17

In any event, the lease contains no clear waiver of the 
right to notice of the reasons for eviction. It should not 
lightly be presumed, from a document that is silent on the 
subject, that the constitutional rights of indigent public 
housing tenants have been waived. This is particularly true, 
considering the fact that the leases are prepared by govern­
ment agencies who stand in an infinitely superior “bargain­
ing position.” Indeed, by definition, indigent public hous­
ing tenants have no “bargaining position” at all. They are 
offered public housing only because they have insufficient

17 This Court may independently construe the lease in accordance with 
federal law. Clearfield Trust Co. v. United States, 318 U.S. 363; United 
States v. Allegheny County, 322 U.S. 174. The lease was entered into by 
the Housing Authority acting to carry out the policy o f the federal 
housing law's, under a contract with the federal government and with 
federal funds. The lease in question is a contract with an intended bene­
ficiary of the federal program. This was not a custom-tailored lease 
negotiated with specific reference to North Carolina law. Contrast: United 
States v. Yazell, 382 U.S. 341; and see United States v. Helz, 314 F.2d 
301 (6th Cir. 1963). Such month to month leases are commonly used by 
almost every public housing agency in the country, though no federal 
law requires such short terms. There is, thus, a substantial federal interest 
in national uniformity in the treatment of the intended beneficiaries of 
the federal program in accordance with basic standards of decency and 
procedural fairness. This is not at all inconsistent with the policy of the 
federal act to vest in local agencies the “maximum amount o f responsi­
bility 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 [Federal] Authority), with due considera­
tion to accomplishing the objectives o f this chapter while effecting econo­
mies” (42 U.S.C. §1401; emphasis supplied). The policy assumes a 
reservoir of federal control to accomplish the objective of the Act, e.g., 
furnishing housing to the needy. Interpretation of the lease as a federal 
instrument under the Clearfield Trust doctrine, would not require that fed­
eral rather than state law govern contracts made by local authorities with 
others. Contracts with beneficiaries of the program are plainly distinguish­
able from contracts between the local agencies and builders or suppliers, 
which ought to be governed by state law, consistent with the policy of 
using local law as a convenient local resource to accomplish the objectives 
of the program.



33

funds to obtain decent bousing' on the private market. It 
blinks reality to treat low-income public housing tenants as 
if they bargain with the government over the terms of 
their leases.

Petitioner Was Entitled to an 
ing to Contest the Cancellation of Her Low-Income 
Housing Benefits.

Due process requires that petitioner be given some op­
portunity to be heard to offer proof to contest the Au­
thority’s action cancelling her low-income housing benefits. 
The right to a hearing has long been regarded as one of 
the fundamental rudiments of fair procedure necessary 
where the government acts against a citizen’s vital inter­
ests. Hearings are an important protection against ar­
bitrariness. They are customary in our law where the deci­
sion about how government will treat the citizen turns on 
issues of fact. The expectable ordinary controversies that 
may lead to public housing evictions need fair procedures 
for fact-finding. They might involve various claims of mis­
behavior by tenants affecting other tenants or the prop­
erty. Tenants should have the right to have decisions 
on such issues based on evidence and not on rumor or 
fancy. For the indigent, eviction is a serious penalty. 
And, of course, hearings are all the more necessary where 
First Amendment claims are implicated, or there is a claim 
of race discrimination, or any similar constitutional claim.

The due process right to a fair administrative hearing 
has been sustained in a variety of contexts over the years.18

18 The right to a hearing in criminal and civil litigation in the courts 
is, of course, basic in our Constitutional jurisprudence. Re Oliver, 333 
U.S. 257, 273; Coe v. Armour Fertilizer Works, 237 U.S. 413.

Ill



34

The right to a hearing has been upheld where officials 
sought to deport aliens, Japanese Immigrant Case (Yama- 
taya v. Fisher), 189 U.S. 86; Wong Tang Sung v. McGrath, 
339 U.S. 33, 49-51; Kwong Hai Chew v. Colcling, 344 U.S. 
590; where a man claiming citizenship was excluded from 
the country, Chin Yotv v. United States, 208 U.S. 8; where 
a board assessed taxes for street-paving, Londoner v. 
Denver, 210 U.S. 373, 386 ;19 where a railroad was ordered 
to abolish a grade crossing, Southern R. Co. v. Virginia, 
290 U.S. 190; where railway rates, I.C.C. v. Louisville & 
N. R. Co., 227 U.S. 88, 91, 93, and livestock prices, Morgan 
v. United States, 304 U.S. I,20 were regulated; where a col­
lege professor was summarily discharged without a hearing 
for invoking the privilege against self-incrimination before 
a Senate committee, Slochower v. Board of Higher Educa­
tion, 350 U.S. 551; where students in state colleges were 
expelled without hearings for alleged misconduct in anti­
segregation demonstrations, Dixon v. Alabama State Board 
of Education, 294 F.2d 150 (5th Cir. 1961), cert, denied, 
368 U.S. 930; Knight v. State Board of Education, 200 
F.Supp. 174 (M.D. Tenn. 1961) ;21 and where a bar commit­
tee refused, without a hearing, to certify an applicant’s 
good character, Willner v. Committee on Character £  Fit­
ness, 373 U.S. 96. In Greene v. McElroy, 360 U.S. 474, the 
Court invalidated revocation of the security clearance of

19 Contrast Londoner, supra, with Bi-Metallic Inv. Go. v. State Board 
of Equalization, 239 U.S. 441. The difference in results follows from 
application of the distinction between cases involving “ adjudicative”  facts 
and those involving “ legislative”  facts. 1 Davis, A dministrative Law  
Treatise, §7.04 (1958). The issues in eviction cases will almost invariably 
involve “ adjudicative”  facts determining whether tenants fall within an 
established rule.

20 Cf. Morgan v. United States, 298 U.S. 468.
21 See also Woods v. Wright, 334 F.2d 369 (5th Cir. 1964). Compare 

Swan v. Board of Higher Education, 319 F.2d 56, 58 (2d Cir. 1963), with 
Steier v. New York State Educ. Com’r, 271 F.2d 13 (2d Cir. 1959), cert, 
denied, 361 U.S. 966.



35

the private employee of a defense contractor, based on un­
disclosed adverse reports about the employee. Where the 
action without a fair hearing was not explicitly authorized 
by the President or Congress, the Court ruled it impermis­
sible without deciding the constitutional issue. But the 
opinion has constitutional overtones: “Where administra­
tive action has raised serious constitutional problems, the 
Court has assumed that Congress or the President in­
tended to afford those affected by the action the tradi­
tional safeguards of due process.” 360 TT.S. at 507.

When the poor deal with government welfare agencies 
they should receive no less protection than is accorded to 
meat packers, and railroads, and lawyers, and college stu­
dents in their confrontations with government. As Pro­
fessor Harry Jones has put it, this is “the task of the rule 
of law.” 22 Addressing the issue, Professor Charles A. 
Reich has written, concerning public housing, and welfare 
programs generally:

In a society where a significant portion of the popu­
lation is dependent on social welfare, decisions about 
eligibility for benefits are among the most important 
that a government can make. By one set of values the 
granting of a license to broadcast over a television 
channel, or to build a hydroelectric project on a river, 
might seem of more far-reaching significance. But in 
a society that considers the individual as its basic unit

22 Jones, The Rule o f Law and the Welfare State, 58 Colum. L. Rev.
143, 156 (1958) :

“ In the welfare state, the private citizen is forever encountering 
public officials of many kinds: regulators, dispensers of social ser­
vices, managers of state-operated enterprises. It is the task of the 
rule of law to see to it that these multiplied and diverse encounters 
are as fair, as just, and as free from arbitrariness as are the familiar 
encounters of the right-asserting private citizen with the judicial 
officers of the traditional law.”



36

a decision affecting the life of a person or a family 
should not be taken by means that would be unfair for 
a television station or power company. Indeed, full 
adjudicatory procedures are far more appropriate in 
welfare cases than in most of the areas of administra­
tive procedure.

#  * #  #  #

At a minimum, there should be notice to beneficiaries 
of regulations and proposed adverse action, and fact 
finding should be carried on in a scrupulous fashion.

# # * # #
Procedures can develop gradually and pragmatically, 
but as welfare grows in importance in our society, it 
will be necessary to give increasing attention to the 
procedures by which welfare rights are granted or re­
fused. Here the experience of lawyers can be of great 
assistance; whatever the outcome of particular deci­
sions, adequate procedure gives a sense of fairness that 
is vital to community acceptance of a welfare pro­
gram.23

In a concurring opinion, expressing the view that the 
designation of organizations as Communist without a hear­
ing violated procedural due process, Mr. Justice Frankfur­
ter stated the matters he thought properly considered in 
judging the right to a hearing; Joint Anti-Fascist Refugee 
Com. v. McGrath, 341 U.S. 123, 163:

The precise nature of the interest that has been ad­
versely affected, the manner in which this was done, 
the reasons for doing it, the available alternatives to 
the procedures that were followed, the protection im­

23 Reich, Individual Bights and Social W elfare: The Emerging Legal 
Issues, 74 Y ale L.J. 1245, 1253 (1965).



37

plicit in the office of the functionary whose conduct is 
challenged, the balance of hurt complained of and good 
accomplished—these are some of the considerations 
that must enter into the judicial judgment.

Appraising the circumstances of Mrs. Thorpe’s case 
against the tests mentioned by Mr. Justice Frankfurter, 
persuasively demonstrates her right to a hearing as a mat­
ter of fundamental fairness:

1. “The precise nature of the interest that has been 
adversely affected.”  Petitioner’s interest (discussed supra, 
pp. 25-26) involves the difference between living in a low- 
cost, decent, sanitary and stable environment or being 
relegated to slums that “may indeed make living an almost 
insufferable burden.” Berman v. Parker, 348 IT.S. 26, 32. 
It has been said that deportation may result in the loss 
“of all that makes life worth living” , Ng Fung Ho v. White, 
259 U.S. 276, 284. Can any less be said about loss of the 
opportunity to raise one’s children in a decent environ­
ment? As President Johnson has said, the dispossessed 
Negro poor “are another nation.” 24

2. “ [T]he manner in which this was done, the reason 
for doing it.”  The eviction notice stated no reason for 
the action, and no reason was otherwise disclosed despite 
petitioner’s repeated requests. This is sufficient commen­
tary on the arbitrary manner in which she was treated.

3. “ \_T~\he available alternatives to the procedure that 
was followed.”  The housing authority could have afforded

24 Remarks of President Lyndon B. Johnson, at Howard University, 
Washington, D. C., June 4, 1965, “ To Fulfill These Rights” , p. 4:

“ But for the great majority of Negro Americans— the poor, the 
unemployed, the uprooted and the dispossessed—there is a much 
grimmer story. They still are another nation. Despite the court 
orders and the laws, despite the legislative victories and the speeches, 
for them the walls are rising and the gulf is widening.”



38

Mrs. Thorpe a written statement of the grounds for can­
celling her lease, and an opportunity to present proof on 
any issues of contested fact affecting her right to remain 
in the housing project. The Housing Authority of the 
City of Durham, has statutory power “to conduct examina­
tions and investigations and to hear testimony and take 
proof under oath at public or private hearings on any 
matter material for its information.” Glen. Stats, of N.C., 
§157-9. The authority can “issue subpoenas requiring the 
attendance of witnesses or the production of books and 
papers and . . . issue commissions for the examination of 
witnesses who are out of the State or unable to attend 
before the authority, or excused from attendance” Ibid. 
The authority is empowered to delegate its powers to con­
duct investigations or examinations, and to administer 
oaths and issue subpoenas, to committees, to counsel, and 
to officers or employees. Ibid. The authority has made no 
effort to show that a full trial type hearing to resolve 
factual disputes determinative of a tenant’s right to re­
main in a project would be burdensome or impractical. 
Surely some traditional safeguards are needed lest tenants 
be deprived of their low income housing benefits on the 
basis of vicious and unfounded rumors about their per­
sonal lives or for any of a variety of invidious reasons. 
Petitioner’s First Amendment claim should have been de­
cided only after rigorous procedural safeguards to insure 
fair and reliable fact-finding.

4. “ [T]he protection implicit in the office of the func­
tionary whose conduct is challenged.” Housing authority 
managers and supervisory officials ordinarily have no train­
ing in constitutional law, are not directly responsive to 
an electorate, and are unlikely to be morally or intel­
lectually superior to any other class of government ad-



39

ministrators. They have no special distinction which makes 
them the safe repositories of arbitrary power.

5. [“T]he balance of hurt complained of and good ac­
complished.” The injury threatened to Mrs. Thorpe has 
been discussed above. The Housing Authority’s secrecy 
about its reasons for evicting her deprives the Court of 
any opportunity to appraise what good, if any, might be 
accomplished by evicting her. Denial of a hearing can 
plainly hide evil, but we are unable to perceive any useful 
public purpose that it might accomplish.

The courts below rejected the claimed right to a hearing, 
as they rejected the claimed right to notice, on the basis 
of the lease provisions. We have argued, above pp. 29-33, 
with respect to the right to notice, that it is unconstitu­
tional for the agency to exact the waiver of a basic element 
of procedural fairness as part of the price of obtaining 
a low-income apartment. What we have said before, supra, 
pp. 29-33, applies with equal force to the right to a hearing. 
The petitioner’s lease contains no clear and explicit waiver 
of a hearing. The Congress has not authorized local agen­
cies to deny procedural fairness to these recipients 
of the national largesse. “ Such [a decision] cannot be as­
sumed by acquiescence or non-action.” Greene v. McElroy, 
360 U.S. 474, 507. A requirement that low-income tenants 
waive their rights to a hearing is an unconstitutional con­
dition which the state-federal agency may not impose. 
Sherbert v. Verner, 374 U.S. 398.25 As we have seen, 
arbitrary power in the hands of housing managers can 
strike at the heart of free speech (Holt v. Richmond, Re­
development and Housing Authority, Civil Action No. 4746, 
E.D. Va., September 7, 1966), and free religious expres-

20 See also cases cited, supra, p. 29.



40

sion (Tucker v. Texas, 326 U.S. 517.) The Housing Author­
ity of the City of Durham may not acquire arbitrary 
power over basic constitutional freedoms by contract, lease 
or otherwise. Sherbert v. Verner, supra; Speiser v. Ran­
dall, 357 U.S. 513.

CONCLUSION

It is respectfully submitted that the judgment below 
should be reversed.

Respectfully submitted,

J ack  Greenberg 
J am es M. N abrit , III 
C harles S teph en  R alston  
C harles H. J ones, J r .
M ich ael  M eltsner  
S h e ila  R u sh  J ones 

10 Columbus Circle 
New York, New York 10019

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

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

Attorneys for Petitioner

Of Counsel:
M artin  Garbus 
E dward V . S parer 
H oward T horkelson



APPENDIX



A P P E N D I X

Excerpts from the United States Housing Act of 1.937 

42 U.S.C. §1401 et seq.

§ 1401. Declaration of 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, 1987, 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 V, § 501, 73 Stat. 679.

§ 1402. Definitions
When used in this chapter—

L ow -R en t  H o u sin g ; E l ig ib il it y ;
Continued  O ccupancy

(1) The term “low-rent housing” means decent, safe, 
and sanitary dwellings within the financial reach of fam-



2a

ilies of low income, and developed and administered to 
promote serviceability, efficiency, economy, and stability, 
and embraces all necessary appurtenances thereto. The 
dwellings in low-rent housing shall be available solely for 
families of low income. Except as otherwise provided in 
section 1421b of this title, income limits for occupancy 
and rents shall be fixed by the public housing agency and 
approved by the Administration after taking into con­
sideration (A) the family size, composition, age, physical 
handicaps, and other factors which might affect the rent- 
paying ability of the family, and (B) the economic factors 
which affect the financial' stability and solvency of the 
project.

(2) The term “ families of low income” means families 
(including elderly and displaced families) who are in the 
lowest income group and who cannot afford to pay enough 
to cause private enterprise in their locality or metropolitan 
area to build an adequate supply of decent, safe, and sani­
tary dwellings for their use. The term “families” includes 
families consisting of a single person in the case of elderly 
families and displaced families, and includes the remaining 
member of a tenant family. The term “elderly families” 
means families whose heads (or their spouses), or whose 
sole members, have attained the age at which an individual 
may elect to receive an old-age benefit under title II of the 
Social Security Act, or are under a disability as defined in 
section 423 of this Title, or are handicapped within the 
meaning of section 1701q of Title 12. The term “displaced 
families” means families displaced by urban renewal or 
other governmental action, or families whose present or 
former dwellings are situated in areas determined by the 
Small Business Administration, subsequent to April 1,

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



3a

1965, to have been affected by a natural disaster, and 
which have been extensively damaged or destroyed as the 
result of such disaster. As amended Aug. 10, 1965, Pub.L. 
89-117, Title I, §§ 103(b), 104, 79 Stat. 457.

S lum

(3) The term “slum” means any area where dwellings 
predominate which, by reason of dilapidation, overcrowd­
ing, faulty arrangement or design, lack of ventilation, light 
or sanitation facilities, or any combination of these factors, 
are detrimental to safety, health, or morals.

S lu m  Clearance

(4) The term “slum clearance” means the demolition 
and removal of buildings from any slum area.

D e v e lo p m e n t ; O ffice S pace for R en ew al  F unctions

(5) The term “development” means any or all under­
takings necessary for planning, land acquisition, demolition, 
construction, or equipment, in connection with a low-rent 
housing project. The term “development cost” shall com­
prise the costs incurred by a public housing agency in such 
undertakings and their necessary financing (including the 
payment of carrying charges, but not beyond the point of 
physical completion), and in otherwise carrying out the 
development of such project. Construction activity in con­
nection with a low-rent housing project may be confined 
to the reconstruction, remodeling, or repair of existing 
buildings. In cases where the public housing agency is 
also the local public agency for the purposes of sections 
1450-1452, 1453-1455, 1456-1460, and 1462 of this title, or 
in cases where the public housing agency and the local

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



4a

public agency for purposes of such sections operate under 
a combined central administrative office staff, an admin­
istration building included in a low-rent housing project 
to provide central administrative office facilities may also 
include sufficient facilities for the administration of the 
functions of such local public agency, and in such case, 
the Administration shall require that an economic rent 
shall be charged for the facilities in such building which 
are used for the administration of the functions of such 
local public agency and shall be paid from funds derived 
from sources other than the low-rent housing projects of 
such public housing agency.

A dm inistration

(6) The term “administration” means any or all under­
takings necessary for management, operation, maintenance, 
or financing, in connection with a low-rent-housing or slum- 
clearance project, subsequent to physical completion.

F ederal P roject

(7) The term “Federal project” means any project owned 
or administered by the Administration.

* # # # *

P ublic H ousing  A gency

(11) The term “public housing agency” means any State, 
county, municipality, or other governmental entity or pub­
lic body (excluding the Administration), which is author­
ized to engage in the development or administration of 
low-rent housing or slum clearance. The Administration 
shall enter into contracts for financial assistance with a 
State or State agency where such State or State agency

E xcerp ts  from  the U nited S tates H ousing A c t  o f  1937



5a

makes application for such assistance for an eligible project 
which, under the applicable laws of the State, is to be 
developed and administered by such State or State agency.

S tate

(12) The term “State” includes the States of the Union, 
the District of Columbia, and the Territories, dependencies, 
and possessions of the United States.

P ublic H ousing  A dm inistration

(13) The term “Administration” means the Public Hous­
ing Administration.

# # # # #
§ 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 lie 
sued only with respect to its functions under this chapter, 
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

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6a

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 
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.

§ 1410. Annual contributions in assistance of low rentals—  
Authorization

#  #  #  #  #

M a xim u m  I ncome L im its  ; A dmission  P olicies

(g) Every contract for annual contributions for any low- 
rent housing- project shall provide that—

(1) the maximum income limits fixed by the public hous­
ing agency shall be subject to the prior approval of the 
Administration and the Administration may require the 
agency to review and revise such limits if the Administra-

E xcerp ts  from  the United S tates M ousing A c t o f  1937



tion determines that changed conditions in the locality make 
such revisions necessary in achieving the purposes of the 
chapter;

(2) the public housing agency shall adopt and promul­
gate regulations establishing admission policies which shall 
give full consideration to its responsibility for the rehous­
ing of displaced families, to the applicant’s status as a 
serviceman or veteran or relationship to a serviceman or 
veteran or to a disabled serviceman or veteran, and to the 
applicant’s age or disability, housing conditions, urgency 
of housing* need, and source of income: Provided, That in 
establishing such admission policies the public housing 
agency shall accord to families of low income such priority 
over single persons as it determines to be necessary to 
avoid undue hardship; and

(3) the public housing agency shall determine, and so 
certify to the Administration, that each family in the 
project was admitted in accordance with duly adopted 
regulations and approved income limits; and the public 
housing agency shall make periodic reexaminations of the 
incomes of families living in the project and shall require 
any family whose income has increased beyond the ap­
proved maximum income limits for continued occupancy 
to move from the project unless the public housing agency 
determines that, due to special circumstances, the family 
is unable to find decent, safe and sanitary housing within 
its financial reach although making every reasonable effort 
to do so, in which event such family may be permitted to 
remain for the duration of such a situation if it pays an 
increased rent consistent with such family’s increased in­
come.

7a

E xcerp ts  from  the U nited S tates H ousing A c t o f  1937

#  #  #  #  *



8a

§ 1415. Preservation of low rents
In order to insure that the low-rent character of housing 

projects will be preserved, and that the other purposes of 
this chapter will he achieved, it is provided that—

#  #  #  *  *

L ocal R esponsibilities and D eteb.m in atio n s

(7) In recognition that there should be local determina­
tion of the need for low-rent housing to meet needs not 
being adequately met by private enterprise—

(a) The Administration shall not make any contract 
with a public housing agency for preliminary loans 
(all of which shall be repaid out of any moneys which 
become available to such agency for the development 
of the projects involved) for surveys and planning in 
respect to any low-rent housing projects initiated after 
March 1, 1949, (i) unless the governing body of the 
locality involved has by resolution approved the ap­
plication of the public housing agency for such pre­
liminary loan; and (ii) unless the public housing 
agency has demonstrated to the satisfaction of the 
Administration that there is a need for such low-rent 
housing which is not being met by private enterprise; 
and

(b) The Administration shall not make any contract 
for loans (other than preliminary loans) or for annual 
contributions pursuant to this chapter with respect to 
any low-rent housing project initiated after March 1, 
1949, (i) unless the governing body of the locality in­
volved has entered into an agreement with the public 
housing agency providing for the local cooperation 
required by the Administration pursuant to this chap­
ter ; (ii) unless the public housing agency has demon-

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9a

strated to the satisfaction of the Administration that 
a gap of at least 20 per centum (except in the case of 
a displaced family or an elderly family) has been left 
between the upper rental limits for admission to the 
proposed low-rent housing and the lowest rents at 
which private enterprise unaided by public subsidy is 
providing (through new construction and available ex­
isting structures) a substantial supply of decent, safe, 
and sanitary housing toward meeting the need of an 
adequate volume thereof; and (iii) unless the public- 
housing agency has demonstrated to the satisfaction 
of the Administration that there is a feasible method 
for the temporary relocation of the individuals and 
families displaced from the project site, and that there 
are or are being provided, in the project area or in 
other areas not generally less desirable in regard to 
public utilities and public and commercial facilities and 
at rents or prices within the financial means of such 
individuals and families, decent, safe, and sanitary 
dwellings equal in number to the number of and avail­
able to such individuals and families and reasonably 
accessible to their places of employment.

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10a

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; 
and that the necessity for the provisions hereinafter en­
acted is hereby declared as a matter of legislative deter-



11a

mination to be in the public interest. (1935, c. 456, s. 2; 1938, 
Ex. Sess., c. 2, s. 14; 1941, c. 78, s. 2.)

§ 157-4. Notice, hearing and creation of authority; can­
cellation of certificate of incorporation

Any twenty-five residents of a city and of the area 
within ten miles from the territorial boundaries thereof 
may file a petition with the city clerk setting forth that 
there is a need for an authority to function in the city 
and said surrounding area. Upon the filing of such a peti­
tion the city clerk shall give notice of the time, place and 
purposes of a public hearing at which the council will de­
termine the need for an authority in the city and said 
surrounding area. Such notice shall be given at the city’s 
expense by publishing a notice, at least ten days preceding 
the day on which the hearing is to be held, in a news­
paper having a general circulation in the city and said 
surrounding area, or, if there be no such newspaper, by 
posting such notice in at least three public places within 
the city, at least ten days preceding the day on which the 
hearing is to be held.

Upon the date fixed for said hearing held upon notice 
as provided herein, an opportunity to be heard shall be 
granted to all residents and taxpayers of the city and said 
surrounding area and to all other interested persons. A f­
ter such a hearing, the council shall determine:

(1) "Whether insanitary or unsafe inhabited dwelling
accommodations exist in the city and said sur­
rounding area, and/or

(2) Whether there is a lack of safe or sanitary dwell­
ing accommodations in the city and said sur-

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12a

rounding area available for all the inhabitants 
thereof.

In determining whether dwelling* accommodations are un­
safe or insanitary, the council shall take into consideration 
the following: the physical condition and age of the build­
ings; the degree of overcrowding; the percentage of land 
coverage; the light and air available to the inhabitants of 
such dwelling accommodations; the size and arrangement 
of the rooms; the sanitary facilities; and the extent to 
which conditions exist in such buildings which endanger 
life or property by fire or other causes.

If it shall determine that either or both of the above 
enumerated conditions exist, the council shall adopt a reso­
lution so finding (which need not go into any detail other 
than the mere finding) and shall cause notice of such 
determination to be given to the mayor who shall there­
upon appoint, as hereinafter provided, five commissioners 
to act as an authority. Said commission shall be a public 
body and a body corporate and politic upon the comple­
tion of the taking of the following proceedings:

The commissioners shall present to the Secretary of State 
an application signed by them, which shall set forth (with­
out any detail other than the mere recital):

(1) That a notice has been given and public hearing
has been held as aforesaid, that the council made 
the aforesaid determination after such hearing, 
and that the mayor has appointed them as com­
missioners ;

(2) The name and official residence of each of the com­
missioners, together with a certified copy of the 
appointment evidencing their right to office, the

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“ M ousing A u th ority  Law ”



13a

date and place of induction into and taking oath 
of office, and that they desire the housing au­
thority to become a public body and a body cor­
porate and politic under this article;

(3) The term of office of each of the commissioners;
(4) The name which is proposed for the corporation;

and
(5) The location of the principal office of the proposed

corporation.

The application shall be subscribed and sworn to by each 
of said commissioners before an officer authorized by the 
laws of the State to take and certify oaths, who shall certify 
upon the application that he personally knows the commis­
sioners and knows them to be the officers as asserted in the 
application, and that each subscribed and swore thereto 
in the officer’s presence. The Secretary of State shall ex­
amine the application and if he finds that the name pro­
posed for the corporation is not identical with that of a 
person or of any other corporation of this State or so 
nearly similar as to lead to confusion and uncertainty he 
shall receive and file it and shall record it in an appropri­
ate book of record in his office.

When the application has been made, filed and recorded, 
as herein provided, the authority shall constitute a public 
body and a body corporate and politic under the name 
proposed in the application; the Secretary of State shall 
make and issue to the said commissioners a certificate of 
incorporation pursuant to this article, under the seal of 
the State, and shall record the same with the application.

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14a

If the council, after a hearing as aforesaid, shall deter­
mine that neither of the above enumerated conditions exist, 
it shall adopt a resolution denying the petition. After 
three months shall have expired from the date of the de­
nial of any such petitions, subsequent petitions may be 
filed as aforesaid and new hearings and determinations 
made thereon.

In any suit, action or proceeding involving the validity 
or enforcement of or relating to any contract of the au­
thority, the authority shall be conclusively deemed to have 
been established in accordance with the provisions of this 
article upon proof of the issuance of the aforesaid certifi­
cate by the Secretary of State. A  copy of such certificate, 
duly certified by the Secretary of State, shall be admissible 
in evidence in any such suit, action or proceeding, and 
shall be conclusive proof of the filing and contents thereof.

The Secretary of State is authorized and empowered to 
revoke or to cancel a certificate of incorporation previ­
ously issued to an authority or housing authority upon 
filing in his office a petition and resolution of the council 
and a petition and resolution of the authority and its mem­
bers requesting such revocation or cancellation and wThen 
the Secretary of State is satisfied that no indebtedness has 
been incurred or property acquired by said housing au­
thority. (1935, c. 456, s. 4; 1943, c. 636, s. 7; 1961, c. 987.)

§ 157-9. Powers of authority
An authority shall constitute a public body and a body 

corporate and politic, exercising public powers, and having 
all the powers necessary or convenient to carry out and 
effectuate the purposes and provisions of this article, in­
cluding the following powers in addition to others herein 
granted:

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15a

To investigate into living, dwelling and housing condi­
tions and into the means and methods of improving such 
conditions; to determine where unsafe, or insanitary dwell­
ing or housing conditions exist; to study and make recom­
mendations concerning the plan of any city or municipality 
located within its boundaries in relation to the problem of 
clearing, replanning and reconstruction of areas in which 
unsafe or insanitary dwelling or housing conditions exist, 
and the providing of dwelling accommodations for persons 
of low income, and to co-operate with any city municipal 
or regional planning agency; to prepare, carry out and 
operate housing projects; to provide for the construction, 
reconstruction, improvement, alteration or repair of any 
housing project or any part thereof; to take over by pur­
chase, lease or otherwise any housing project located with­
in its boundaries undertaken by any government, or by any 
city or municipality located in whole or in part within its 
boundaries; to manage as agent of any city or municipality 
located in whole or in part within its boundaries any hous­
ing project constructed or owned by such city; to act as 
agent for the federal government in connection with the 
acquisition, construction, operation and/or management of 
a housing project or any part thereof; to arrange with 
any city or municipality located in whole or in part within 
its boundaries or with a government for the furnishing, 
planning, replanning, installing, opening or closing of 
streets, roads, roadways, alleys, sidewalks or other places 
or facilities or for the acquisition by such city, municipal­
ity, or government of property, options or property rights 
or for the furnishing of property or services in connec­
tion with a project; to arrange with the State, its subdi­
visions and agencies, and any county, city or municipality

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16a

of the State, to the extent that it is within the scope of 
each of their respective functions, (i) to cause the services 
customarily provided by each of them to be rendered for 
the benefit of such housing* authority and/or the occupants 
of any housing projects and (ii) to provide and maintain 
parks and sewage, water and other facilities adjacent to 
or in connection with housing* projects and (iii) to change 
the city or municipality map, to plan, replan, zone or re­
zone any part of the city or municipality; to lease or rent 
any of the dwelling or other accommodations or any of the 
lands, buildings, structures or facilities embraced in any 
housing project and to establish and revise the rents or 
charges therefor; to enter upon any building or property 
in order to conduct investigations or to make surveys or 
soundings; to purchase, lease, obtain options upon, ac­
quire by gift, grant, bequest, devise, or otherwise any 
property real or personal or any interest therein from 
any person, firm, corporation, city, municipality, or gov­
ernment ; to acquire by eminent domain any real property, 
including improvements and fixtures thereon; to sell, ex­
change, transfer, assign, or pledge any property real or 
personal or any interest therein to any person, firm, cor­
poration, municipality, city, or government; to own, hold, 
clear and improve property; to insure or provide for the 
insurance of the property or operations of the authority 
against such risks as the authority may deem advisable; 
to procure insurance or guarantees from a federal govern­
ment of the payment of any debts or parts thereof se­
cured by mortgages made or held by the authority on any 
property included in any housing project; to borrow money 
upon its bonds, notes, debentures or other evidences of 
indebtedness and to secure the same by pledges of its

Excerpts from the North Carolina
“Housing Authority Law”



17a

revenues, and (subject to the limitations hereinafter im­
posed) by mortgages upon property held or to be held 
by it, or in any other manner; in connection with any loan, 
to agree to limitations upon its right to dispose of any 
housing project or part thereof or to undertake additional 
housing projects; in connection with any loan by a gov­
ernment, to agree to limitations upon the exercise of any 
powers conferred upon the authority by this article; to 
invest any funds held in reserves or sinking funds, or 
any funds not required for immediate disbursement, in 
property or securities in which savings banks may legally 
invest funds subject to their control; to sue and be sued; 
to have a seal and to alter the same at pleasure; to have 
perpetual succession; to make and execute contracts and 
other instruments necessary or convenient to the exercise 
of the powers of the authority; to make and from time to 
time amend and repeal bylaws, rules and regulations not 
inconsistent with this article, to carry into effect the pow­
ers and purposes of the authority; to conduct examina­
tions and investigations and to hear testimony and take 
proof under oath at public or private hearings on any 
matter material for its information; to issue subpoenas 
requiring the attendance of witnesses or the production of 
books and papers and to issue commissions for the exam­
ination of witnesses who are out of the State or unable 
to attend before the authority, or excused from attendance; 
and to make available to such agencies, boards or commis­
sions as are charged with the duty of abating or requir­
ing the correction of nuisances or like conditions, or of 
demolishing unsafe or insanitary structures within its ter­
ritorial limits, its findings and recommendations with re­
gard to any building or property where conditions exist

Excerpts from the North Carolina
“Housing Authority Law ”



18a

which are dangerous to the public health, morals, safety 
or welfare. Any of the investigations or examinations pro­
vided for in this article may be conducted by the author­
ity or by a committee appointed by it, consisting of one 
or more commissioners, or by counsel, or by an officer or 
employee specially authorized by the authority to con­
duct it. Any commissioner, counsel for the authority, or 
any person designated by it to conduct an investigation 
or examination shall have power to administer oaths, take 
affidavits and issue subpoenas or commissions. An au­
thority may exercise any or all of the powers herein con­
ferred upon it, either generally or with respect to any 
specific housing project or projects, through or by an 
agent or agents which it may designate, including any 
corporation or corporations which are or shall be formed 
under the laws of this State, and for such purposes an 
authority may cause one or more corporations to be 
formed under the laws of this State or may acquire the 
capital stock of any corporation or corporations. Any 
corporate agent, all of the stock of which shall be owned 
by the authority or its nominee or nominees, may to the 
extent permitted by law exercise any of the powers con­
ferred upon the authority herein. In addition to all of the 
other powers herein conferred upon it, an authority may 
do all things necessary and convenient to carry out the 
powers expressly given in this article. No provisions with 
respect to the acquisition, operation or disposition of 
property by other public bodies shall be applicable to an 
authority unless the legislature shall specifically so state.

Notwithstanding anything to the contrary contained in 
this article or in any other provision of law an authority 
may include in any contract let in connection with a

Excerpts from the North Carolina
“Housing Authority Law”



19a

project, stipulations requiring that the contractor and any 
subcontractors comply with requirements as to minimum 
wages and maximum hours of labor, and comply with any 
conditions which the federal government may have at­
tached to its financial aid of the project. (1935, c. 456, s. 9; 
1939, c. 150.)

§ 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 thing's 
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.)

§ 157-29. Rentals and tenant selection
It is hereby declared to be the policy of this State that 

each housing authority shall manage and operate its hous-

Excerpts from the North Carolina
“Housing Authority Law”



20a

mg projects in an efficient manner so as to enable it to 
fix tbe rentals for dwelling accommodations at the lowest 
possible rates consistent with its providing decent, safe and 
sanitary dwelling accommodations, and that no housing 
authority shall construct or operate any such project for 
profit, or as a source of revenue to the city. To this end 
an authority shall fix the rentals for dwellings in its proj­
ects at no higher rates than it shall find to be necessary 
in order to produce revenues which (together with all 
other available monies, revenues, income and receipts of 
the authority from whatever sources derived) will be suffi­
cient

(1) To pay, as the same become due, the principal and
interest on the bonds of the authority;

(2) To meet the cost of, and to provide for, maintain­
ing and operating the projects (including the 
cost of any insurance) and the administrative 
expenses of the authority; and

(3) To create (during not less than the six years
immediately succeeding its issuance of any 
bonds) a reserve sufficient to meet the largest 
principal and interest payment which will be 
due on such bonds in any one year thereafter 
and to maintain such reserve.

In the operation or management of housing projects an 
authority shall at all times observe the following duties 
with respect to rentals and tenant selection:

(1) It may rent or lease the dwelling accommodations 
therein only to persons who lack the amount of 
income which necessary (as determined by the

Excerpts from the North Carolina
“Housing Authority Law”



21a

housing authority undertaking the housing proj­
ect) to enable them, without financial assistance, 
to live in decent, safe and sanitary dwellings, 
without overcrowding;

(2) It may rent or lease the dwelling accommodations
only at rentals within the financial reach of such 
persons;

(3) It may rent or lease to a tenant dwelling accom­
modations consisting of the number of rooms 
(but no greater number) which it deems neces­
sary to provide safe and sanitary accommoda­
tions to the proposed occupants thereof, with­
out overcrowding; and

(4) It shall not accept any person as a tenant in any
housing project if the person or persons who 
would occupy the dwelling accommodations have 
an annual net income in excess of five times the 
annual rental of the quarters to be furnished 
such person or persons, except that in the case 
of families with three or more minor depend- 
dents, such ratio shall not exceed six to one; 
in computing the rental for this purpose of 
selecting tenants, there shall be included in the 
rental the average annual cost (as determined 
by the authority) to occupants of heat, water, 
electricity, gas, cooking range and other neces­
sary services or facilities, whether or not the 
charge for such services and facilities is in fact 
included in the rental.

Excerpts from the North Carolina
“Housing Authority Law”



22a

Excerpts from the North Carolina 
“Housing Authority Law”

Nothing contained in this section shall be construed as 
limiting the power of an authority to vest in an obligee 
the right, in the event of a default by the authority, to 
take possession of a housing project or cause the appoint­
ment of a receiver thereof, free from all the restrictions 
imposed by this section. (1939, c. 150.)



23a

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 
possession of the demised premises, or any part thereof, 
without the permission of the landlord, and after demand 
made for its surrender, may be removed from such prem­
ises 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.)

§ 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



24a

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 
attorney 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 
conspicuous part of the premises claimed. (1868-9, c. 156, 
s. 21; Code, s. 1768; Rev., s. 2003; C. S., s. 2368.)

§ 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

North Carolina Statutes Re Summary Ejectment



25a

in possession of, the demised premises; and if any rent or 
damages for the occupation of the premises after the 
cessation of the estate of the lessee, not exceeding two 
hundred dollars, he claimed in the oath of the plaintiff as 
due and unpaid, the justice shall inquire thereof, and give 
judgment 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, c. 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 
detention of his 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

North Carolina Statutes Be Summary Ejectment



26a

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, except 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 pre­
siding judge, in his discretion, may make up for trial in 
advance any pending case in which the rights of the par­
ties or the public require it ; but no execution commanding 
the 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 jus­
tify 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

North Carolina Statutes Re Summary Ejectment



27a

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 
undertaking above mentioned, the tenant, after legal no­
tice 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 affidavit that he is unable so to do and 
show merits, his appeal shall be dismissed and the judg­
ment 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.)

North Carolina Statutes lie Summary Ejectment



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