WASHINGTON’S LABYRINTHINEWAYS

By Otto J. Hetzel

Supreme Court Permits Public Housing Authorities to Evict Even "Innocent" Tenants When Household Occupants Engage in Drug-Related Activity, On or Off Premises, Reversing Ninth Circuit En Banc Decision in HUD v. Rucker. The Court, unanimously (Breyer, J., not participating), sustained 42 U.S.C. § 1437(d)(l)(6), a statute the district court and Ninth Circuit had invalidated, that permits public housing authorities to enforce lease provisions that provide: "any drug-related criminal activity, on or off premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy." Under HUD regulations, the Oakland California Housing Authority was authorized to evict for drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by other occupants.

The opinion by Rehnquist, C.J., applied various statutory construction criteria and accepted HUD’s interpretation that Congress’s use of "any" to modify "drug-related criminal activity" should be given an expansive reading so as to preclude any knowledge requirement. This conclusion was reinforced, it found, by comparison to 21 U.S.C. § 881(a)(7) (providing civil forfeiture of a leasehold when used to commit drug-related criminal activity) in which Congress expressly exempts tenants who had no knowledge of the activity, showing it knew how to do so if it so intended. The Court, on grammatical grounds, found that "under the tenant’s control," because of the use of the disjunctive "or," meant the term "control" applied only to "other person."

The Court held the language unambiguous despite the two lower courts’ contrary interpretations. Invoking the "plain meaning" rule, given his determination that the language was unambiguous, Justice Rehnquist rejected use of inconsistent legislative history the lower courts had considered. He distinguished contrary general language from another statute regarding lease provisions, noting that § 1437(d)(l)(6) was the more specific, so it controlled. Undergirding his conclusions were references to high levels of drug use plaguing public housing and the impact that drug activity was having on other "innocent" residents in public housing.

• Bankruptcy Legislation, That Would Allow Credit Card Companies and Retailers Expanded Opportunities to Recover Against Persons Invoking Personal Bankruptcy, Is Stalled in Conference Committee. Anti-abortion-rights conference committee members are unwilling to support a compromise bill that contains a provision that would prevent opponents of abortions from using bankruptcy laws to avoid paying court judgments and fines they owe as the result of violent protests. This provision has effectively stalled the bill for this session barring some change in position in the waning days of Congress. It was inserted by Senator Charles Schumer (D-N.Y.) who noted that while he supported the bill he felt this provision "protects women as opposed to protecting financial institutions." The bill is opposed by the Consumer Federation and labor unions.

• Democrats Charge Justice Department with Undue Delay in Pre-clearance of State Redistricting Plan Under Voting Rights Act. The 2000 Census has forced Mississippi, as in a number of states, to redistrict. Mississippi needs to go from five to four congressional districts. Required pre-clearance of a state-approved plan that created a 37.5 percent black voting population more favorable to Democrats was delayed in the Justice Department’s Civil Rights Division. A consequence of the delay in approving the plan allowed a three-judge panel of Republican-appointed federal judges to fashion its own version that will be used for the 2002 election since it does not require pre-clearance. That plan reduced the black voting population to 30 percent, perhaps sufficient to favor a Republican congressman, Charles Pickering II, over the Democratic congressman, Ronnie Shows, each of whom is vying to stay in Congress and represent the consolidated district.

The Supreme Court turned down an emergency appeal of the panel’s decision after Justice Scalia, who oversees that circuit, rejected a stay. Questions have been raised whether political considerations influenced the Civil Rights Division’s delay because other critical redistricting plans will also be subject to review this year. The case has raised political hackles over its handling by the Justice Department and over whether some judges should have recused themselves because of personal relationships. Concern has been expressed by Senate Judiciary Chair Pat Leahy (D-Vt.) over delays in the Civil Rights Division review, which has added an interesting twist because the father of Congressman Pickering serves with two of the three judges on the panel whose plan favors his son. Judge Pickering, himself, has been a controversial nominee for the circuit court of appeals and his nomination was rejected by Leahy’s Committee. And, they talk about six degrees of separation.

• Report Finds Cost of Arbitration for Claimants Exceeds Those Experienced in Law Suits. Arbitration is quickly starting to replace litigation in many instances, such as for credit card disputes, car rental firms, insurance claims, and other consumer disputes. Stock transactions are similarly being subjected to mandatory arbitration in lieu of access to courts. Some ABA members may even be surprised to learn that transactions with the ABA-sanctioned Citibank credit card are subject to mandatory arbitration for disputes.

A recent report of a nonprofit advocacy organization, Public Citizen, indicates that arbitration may be more expensive for consumers and employees than using the courts. Noting that no research appears to have validated frequent claims that arbitration costs less, Public Citizen collected cost information and concluded that the cost to a plaintiff of initiating arbitration is almost always higher than instituting litigation. Comparing court fees to fees of arbitration provider organizations, it estimated forum costs can be up to 5,000 percent higher in arbitration than in court litigation, citing $221 for filing fees for a plaintiff in Cook County versus arbitration provider fees charged to a plaintiff ranging from $6,600 to $11,600. Pre-dispute arbitration costs add expense and alternative less expensive volunteer arbitrators and mediation options are generally unavailable.

In general, it concluded expenses involved in providing a private legal system are likely to be much higher than use of the generally available government-supported court system that handles more cases in a more concentrated jurisdiction. Court clerk fees of $44 per case were contrasted to AAA administrative costs of $341. The report notes some arbitration providers impose specific charges for various procedures such as subpoenas ($75), discovery requests ($150), and continuances ($100), indicating that a number of extra fees generally must be covered by claimants that would not be encountered in court proceedings. In addition, when third party testimony is required, frequently a party will need to institute separate judicial proceedings to enforce arbitrator actions, considerably adding to arbitration costs. The report is set forth at www.publiccitizen.org.

• A Well-Crafted Admissions Policy at University of Michigan Law School Using Racial and Ethnicity Considerations Upheld by Divided Sixth Circuit. Contrasting with a 1996 Fifth Circuit decision that struck down use of race-conscious admissions at the University of Texas, the Sixth Circuit decision is likely to generate a follow-up to the 1978 Bakke Supreme Court decision as the case moves forward on appeal. The majority of the en banc court determined that a state institution could use carefully crafted policies to achieve a diverse student body.

• Library Web Filtering Requirement Struck Down. A three-judge federal court has held on First Amendment grounds that the Children’s Internet Protection Act (CIPA) provision requiring libraries starting this July to use software filters to block access to objectionable Internet sites or risk loss of federal funds is too broad. Apparently the technology inadvertently also blocks access to legitimate sites, including certain sites such as churches providing information on sexuality, and medical sources for sexually transmitted disease or information on breast cancer. Moreover, the filters are not even effective in restricting access to all of the more than 100,000 sites deemed pornographic. For the moment, the court found that the Internet’s breadth and capacity for constant change has outdistanced efforts to generate automated classification systems. The decision still permits libraries to use filters for young children when parents request. The provision applies to schools as well, but the court’s ruling was limited to libraries.

• Ban on Protests on Capital Sidewalk Invalidated by Court of Appeals. Despite increased security concerns around the Capital, the D.C. Circuit struck down this May on First Amendment grounds a ban on demonstrations the Capital Police Board had adopted thirty years ago. The area of the Capital had previously been held a "public forum" in a 1972 Supreme Court decision. The case was handled by the American Civil Liberties Union and arose out of a 1997 arrest of an artist handing out leaflets protesting New York City restrictions on sidewalk artists. Calling the Capital, "the centerpiece of our democracy," the court found the police regulations violated the rights of protesters to gather, make speeches, and pass out leaflets on the east side of the Capital. Reasonable time and place regulations and limits on protests, however, were still left to the police. Ironically, the sidewalk is currently closed during construction of a visitors’ center, so the effect of the ruling will not be immediate. The decision, however, should have broader effect on such demonstrations outside federal facilities nationwide.

• Renewal of Welfare Reform Under Consideration. Current legislative provisions are due to expire requiring reauthorization of the program. One of the changes included in the House version, enacted along party lines in April, is a "super waiver" measure that would allow housing and community development program funds to be used for welfare reform demonstration projects. Most of the housing programs other than Section 8 and funding for designated public housing units would be included. Waivers would be allowed only if they were cost neutral and were shown to improve program goals. Civil rights, fair housing, health and safety, labor standards, and environmental protections could not be waived. The flexibility is supported by governors, but local governments and housing authorities have raised a number of questions regarding the proposal. As currently provided in the House version, governors could request that the state administer housing programs now being handled by local authorities or create regional authorities to do so.

Other provisions being considered would impose forty-hour work week requirements in place of current thirty-hour requirements and states would need to have at least 70 percent of their welfare recipients employed by 2007, in contrast to the existing criterion of 50 percent. States have objected to another provision that would phase out credits for persons moved off welfare roles that has allowed states to sidestep work requirements. These issues will need to be resolved before Congress adjourns, since no one would want to be blamed for failure to reenact continuing welfare legislation.

Your correspondent

Otto J. Hetzel is a professor of law emeritus at Wayne State University and practices law in Washington, D.C.