JERSEY CITY HOUSING AUTHORITY v. NORMA FORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5657-08T3

JERSEY CITY HOUSING AUTHORITY,

 

Plaintiff-Respondent,

 

v.

 

NORMA FORD,

 

Defendant-Appellant.

________________________________________________________________

December 28, 2010

 

Argued February 24, 2010 - Decided

 

Before Judges Graves and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-6372-09.

 

Lawrence Sindoni argued the cause for appellant (Northeast New Jersey Legal Services Corp., attorneys; Mr. Sindoni, of counsel and on the brief).

 

Susan B. Gyss argued the cause for respondent (Law Office of Kathleen A. Walrod, attorneys; Ms. Gyss, of counsel and on the brief; Charles M. D'Amico, of counsel).

 

PER CURIAM

In this landlord-tenant case, defendant Norma Ford (Ford) appeals from a judgment of possession in favor of plaintiff Jersey City Housing Authority (JCHA), a public housing authority (PHA). Plaintiff agreed not to execute the warrant of removal during the pendency of this appeal. For the reasons that follow, we reverse and remand for further proceedings.

Ford has been a resident of the JCHA for over thirty years and was employed by plaintiff as a security monitor for fifteen years. According to Ford, plaintiff never complained about her performance as an employee or her conduct as a tenant until her son's arrest on May 14, 2008.

On June 22, 1998, Ford signed a copy of plaintiff's One Strike Policy (the 1998 Policy), which regulated the conduct of JCHA tenants. This document stated that "[a]ll drug-related activity, whether on or off the premises, is cause for eviction." The prohibition applied to "the tenant, any member of the tenant's household, [and] guest[s]" and stated that "[d]rug related or criminal activity in violation of this lease provision will be treated as a serious violation of the material terms of this lease."

Nevertheless, the 1998 Policy stated that its provisions would be "implemented and enforced evenhandedly" and that "[s]imilar lease violations in similar circumstances [would] result in similar sanctions." The policy also recited four mitigating "factors to be considered in determining whether to seek the eviction of a household":

[1.] The magnitude or seriousness of the offense. All drug offenses are serious and it is reasonable to have a strict policy which allocates relatively scarce affordable housing resources to those who play by the rules and remain free of drug activity. However, a less serious non-frequent indiscretion by a member of the household cannot be equated with the most serious offense i.e., performing as a drug merchant or committing of violent acts. The JCHA will review closely cases in which the offense is relatively less serious.

 

[2.] JCHA intervention by staff who will work with families on a voluntary basis. If the family is participating fully and most importantly making sufficient progress in a plan to correct a drug problem, such will be taken into account in determining whether to seek eviction.

 

[3.] The knowledge or ability to know of the offense by the head of household. For example, consideration of sanctions other than eviction might be made if the offense was committed by a household member, off the site and out of the control of the head of household.

 

[4.] Frequency of violations. If a family is cited by Management more than once for serious lease violations, repeated violations by the same family unit indicates a lack of ability or motivation to abide by the rules.

 

[Emphasis in original.]

 

In addition, the 1998 Policy included several non-eviction "alternate sanctions" to be considered where "the criminal act is [not] committed by the head of household or spouse while on the premises." Finally, the policy contained a section requiring written notice of a decision to terminate and guaranteeing tenants "the right to an informal hearing before the Manager." JCHA counsel were to "attend [this hearing] and provide to the Tenant a summary of the hearing and any determinations reached."

On July 31, 2006, Ford signed a lease that included another copy of plaintiff's "One Strike Policy." The lease required her to certify that "no member of the Resident Household or guest shall engage in . . . [a]ny drug-related activity on or off the premises." "Drug-related criminal activity" was defined as "the illegal manufacture, sale, distribution, use or possession with intent to manufacture, sell, distribute, or use . . . a controlled substance." Any violation of the policy would constitute "cause for terminating the tenancy and for eviction from the unit." Where a decision to terminate a tenancy was made based on drug-related criminal activity, the lease required plaintiff to provide the tenant with written notice but explicitly denied tenants the right to request a grievance hearing.

Each year, plaintiff requires its tenants to undergo "recertification," a process that allows it to monitor any changes to tenants' household income and membership. One of Ford's recertification documents, a form HUD-500581 dated September 19, 2007, included her son, Joshua Simmons (Simmons), as a member of her household.

On May 14, 2008, Simmons was arrested and charged with various drug offenses. Several weeks later, Ford received a notice from plaintiff ordering her to cease all activities in violation of her lease. She also attended an informal hearing held by plaintiff on July 18, 2008.

Simmons pled guilty to possession of a controlled substance with intent to distribute within one thousand feet of a school and was sentenced to three years in prison on January 23, 2009. Thereafter, plaintiff sent Ford a notice of termination dated February 6, 2009, demanding that she relinquish the premises on or before April 1, 2009, or face eviction. The notice of termination also included the following:

While you are not entitled to a grievance hearing, your landlord voluntarily extended to you an opportunity to discuss this matter at an Informal Hearing on July 18, 2008. The purpose of this grievance hearing was to give you an opportunity to respond to the allegations made in the Notice to Cease.

 

On April 23, 2009, plaintiff filed a complaint for eviction.

At the June 25, 2009 trial, the court heard testimony from five witnesses: Michael Burgess and Doug Paretto, two Jersey City police officers; Debra Stevens (Stevens), a JCHA assistant asset manager; Bianca Simmons, Ford's niece; and Ford herself. The police officers both stated the offense did not occur on JCHA property and there was no evidence of any involvement by Ford.

In addition, Stevens testified as follows with respect to the JCHA hearing process:

At an informal hearing the arrest is discussed by the hearing officer along with the manager and the resident, the head of household. And the recommendation comes specifically from the manager. And during the informal hearing officers talk to the resident and tell[] them what's going on, what happened, and [the] resident would know to look forward whether they're going to have to go to court. And whether they'll be terminated or not. It's like they're letting them know that the housing authority is seeking eviction.

 

Stevens further stated that plaintiff's "general policy" is to "proceed with termination," although she acknowledged that "exception[s] to the rule" have been made.

On direct examination, Stevens testified that she considered a number of factors when evaluating Ford's case but saw no grounds for an exception:

Q. . . . [W]as Norma Ford given an opportunity to explain to members of the housing authority why she should not be evicted?

 

A. Yes, she was.

 

. . . .

 

Q. Okay. And did you consider whatever she told you?

 

A. Yes.

 

Q. And there are a number of items listed in the written policy with respect to considerations given when there's an alternate disposition. And when I say that, I mean something other than eviction, is there not?

 

A. Right.

 

Q. Okay. And were those items also considered?

 

A. Yes.

 

. . . .

 

Q. And did you hear anything at the informal hearing that made you decide that there should be an exception in this case?

 

A. No.

 

However, on cross-examination, Stevens admitted that she only considered that "Ford did not do anything":

Q. Did you personally consider alternatives to eviction in Ms. Norma Ford's case?

 

. . . .

 

A. Yes. Personally.

 

Q. What did you consider?

 

A. I considered the fact that Norma Ford did not do anything.

 

Q. What else did you consider?

 

A. That's about it. I don't know her son so I didn't consider anything about her son.

 

Q. So you didn t consider anything else?

 

A. I didn't consider anything, I considered Norma Ford is not a person that did anything.

 

Q. So essentially what you're saying is you just considered one thing; correct?

 

A. Yes.

 

Q. And you considered nothing else?

 

A. No.

 

Q. And the [JCHA] policy essentially is that . . . when there's . . . narcotics involved that [the case] essentially is sent to legal. Is that correct?

 

A. Yes.

 

. . . .

 

Q. And by sending it to legal that essentially means you're not going to . . . do anything other than evict this person. Is that correct?

 

A. They're going to have, her case is going to be heard in court.

 

Q. Okay. So in other words, you're not going to consider alternatives to eviction, it's going to court. Is that fair to say?

 

A. Yes.

 

Stevens further testified that "not one question regarding Norma Ford's individual circumstances was asked at the hearing." Instead, Ford was simply informed that her case would result in termination.

Ford claimed at trial that she had no opportunity to explain her personal circumstances at the informal hearing. Like Stevens, Ford testified that the hearing officer just told her she "would be going to court." Thus, according to Ford, plaintiff did not consider mitigating factors or alternatives to eviction at the hearing.

On June 25, 2009, the trial court entered a judgment of possession in plaintiff's favor, reasoning as follows:

The cases that were cited in the briefs interpreting [Department of Housing & Urban Development v. Rucker, 535 U.S. 125, 133-36, 122 S. Ct. 1230, 1235-36, 152 L. Ed. 2d 258, 268-70 (2002)], as being [Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467, 475 (App. Div. 2002)], and [Long Branch Housing Authority v. Villano, 396 N.J. Super. 185, 195 (App. Div. 2007)], I recognize that a housing authority has the discretion under the federal regulations to employ a one strike policy.

 

That in this case there was some action taken to allow Ms. Ford's daughter to move out of the apartment in order to maintain her eligibility to live elsewhere. That Joshua was still a member of her household at the time of his arrest on May 14th. That his arrest was a violation of the Housing Authority one strike policy. The Housing Authority did not violate any requirements of any of the regulations or statutes of either the federal government or the anti-eviction act.

 

The notice to quit is proper. There will be a judgment of possession entered in favor of the Authority.

 

On July 7, 2009, plaintiff obtained a warrant of removal. In response, Ford filed an order to show cause requesting a hardship stay of eviction. This stay was granted on August 11, 2009.

Ford filed a notice of appeal on July 20, 2009. Shortly thereafter, she received a letter dated July 28, 2009, terminating her employment with plaintiff. The letter stated that "[t]he necessity for this action is based upon your supervisors' recommendation, subsequent to your violation of the 'One-Strike' policy and the court ruling in favor of the JCHA."

Ford presents the following arguments on appeal:

POINT I

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO REVIEW PLAINTIFF'S DECISION TO EVICT TENANT WITHOUT CONSIDERING ALTERNATIVES TO EVICTION AVAILABLE UNDER FEDERAL LAW AND PLAINTIFF'S OWN WRITTEN POLICY.

 

A. THE FAILURE OF THE PHA TO ENGAGE IN THE WEIGHING PROCESS TO CONSIDER ALTERNATIVES TO EVICTING TENANT.

 

B. THE FAILURE OF THE TRIAL COURT TO PROPERLY REVIEW THE PHA DECISION TO TERMINATE THE TENANCY.

 

New Jersey provides a special cause of action for the eviction of PHA tenants:

In public housing under the control of a public housing authority or redevelopment agency, the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities, whether or not a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term.

 

[N.J.S.A. 2A:18-61.1(e)(2).]

 

Federal law requires the following lease terms:

Each public housing agency shall utilize leases which . . . provide that . . . any drug-related criminal activity on or off [the] 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 . . . .

 

[42 U.S.C.A. 1437d(l)(6).]

 

This mandate is reinforced by federal regulations, which require leases between PHAs and tenants to contain provisions "to assure that no tenant, member of the tenant's household, or guest engage[] in . . . any drug-related activity on or off the premises." 24 C.F.R. 966.4(f)(12)(i)(B). Federal regulations further state:

The lease must provide that drug-related criminal activity engaged in on or off the premises by any tenant, member of the tenant's household or guest, and any such activity engaged in on the premises by any other person under the tenant's control, is grounds for the PHA to terminate tenancy.

 

[Id. 966.4(l)(5)(i)(B).]

 

These provisions grant PHAs broad discretion and allow them to consider a wide range of mitigating factors when deciding whether to take action against a tenant:

[T]he PHA may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action.

 

[Id. 966.4(l)(5)(vii)(B).]

 

PHAs also have the authority to compel the exclusion of a particular household member where he or she has committed a material breach of the lease. Id. 966.4(l)(5)(vii)(C).

The procedures for reviewing PHA determinations are limited. A tenant's right to a pre-eviction hearing depends on whether the U.S. Department of Housing and Urban Development (HUD) has made a "due process determination" for the state in which the tenant resides. See id. 966.51(a)(2)(i). A "due process determination" is defined as "a determination by HUD that law of the jurisdiction requires that the tenant must be given the opportunity for a hearing in court which provides the basic elements of due process (as defined in 966.53(c)) before eviction from the dwelling unit."2 Ibid. New Jersey has received such a determination:

[A] PHA in New Jersey may evict a public housing tenant pursuant to a Superior Court decision in an eviction proceeding for any grievance involving any . . . drug-related activity on or near [the] premises. The PHA is not required to first afford the tenant the opportunity for an administrative hearing on the eviction.

 

[HUD Due Process Determination for the State of New Jersey, HUD Legal Op. No. GCH-0054 (April 16, 1992), available at http://portal.hud.gov/ portal/ page/ portal/ HUD/ program_offices/ administrationhudclips/ lops.]

 

Accordingly, we recognize that plaintiff was under no obligation to provide Ford with a hearing in this case.

The stringent nature of these regulations has allowed PHAs to hold tenants strictly liable for drug-related offenses. In Department of Housing & Urban Development v. Rucker, supra, 535 U.S. at 133-36, 122 S. Ct. at 1235-36, 152 L. Ed. 2d at 268-70, the United States Supreme Court broadly upheld "one strike" policies. That case concerned tenants like Ford against whom eviction had been sought based on the drug-related activities of household members. Id. at 128, 122 S. Ct. at 1232, 152 L. Ed. 2d at 265. Interpreting the statutes and regulations discussed above, the Court held that "any drug-related activity . . . is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about." Id. at 131, 122 S. Ct. at 1233, 152 L. Ed. 2d at 266-67. However, the Court was careful to note:

The statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from "rampant drug-related or violent crime," "the seriousness of the offending action," and the "the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action" . . . .

 

[Id. at 133-34, 122 S. Ct. at 1235, 152 L. Ed. 2d at 268 (first omission in original) (citations omitted).]

 

The Rucker Court also addressed due process, finding that the Federal Due Process Clause does not require any more individualized assessment of culpability than that provided by a generalized one strike policy. The Court distinguished prior due process cases as concerning "the acts of government as sovereign." Dep't of Hous. & Urban Dev. v. Rucker, supra, 535 U.S. at 135, 122 S. Ct. at 1236, 152 L. Ed. 2d at 269. By contrast, in PHA eviction cases, the state "act[s] as a landlord of property that it owns, invoking a clause in a lease to which [the tenants] have agreed and which Congress has expressly required." Ibid. Thus, the Court held that state eviction proceedings were sufficient to guard against any potential procedural due process concerns. Id. at 135-36, 122 S. Ct. at 1236, 152 L. Ed. 2d at 269-70 ("[I]n the present cases, such deprivation [of a leasehold property interest] will occur in the state court where [the PHA] brought the unlawful detainer action against respondents. . . . Any individual factual disputes about whether the lease provision was actually violated can, of course, be resolved in those proceedings.").

This court has twice applied Rucker to PHA eviction actions in reported decisions. In Oakwood Plaza Apartments v. Smith, supra, 352 N.J. Super. at 475, we considered the case of a Section 8 tenant arrested for "significant" drug-related activity.3 By the time the eviction action had commenced, the tenant in question had relocated, leaving her children in the apartment under the legal custody of another woman. Id. at 469. This woman had intervened on the children's behalf, claiming that their innocence precluded eviction under New Jersey law. Ibid. While acknowledging the discretion given to PHAs, we also quoted a non-binding letter written by HUD Assistant Secretary Michael M. Liu to PHA directors encouraging them to consider mitigating factors:

"[A]fter Rucker, PHAs remain free, as they deem appropriate, to consider a wide range of factors in deciding whether, and whom, to evict as a consequence of . . . a lease violation. Those factors include, among other things, the seriousness of the violation, the effect that eviction of the entire household would have on household members not involved in the criminal activity, and the willingness of the head of household to remove the wrongdoing household member from the lease as a condition for continued occupancy. The Secretary and I urge [PHAs] to consider such factors and to balance them against the competing policy interests that support the eviction of the entire household."

 

[Id. at 472.]

 

In the end, we held that the trial court had a responsibility to determine whether the landlord "exercised its discretion in a manner consistent with federal statute." Id. at 474-75. Because the record "did not reflect a weighing process over which the [trial] court could have asserted its power of review," we reversed the dismissal of the landlord's eviction action and remanded the case for further review. Id. at 475-76.

We reached a similar conclusion in Long Branch Housing Authority v. Villano, supra, 396 N.J. Super. at 195, reversing the dismissal of another landlord's complaint. That case involved a number of drug transactions that occurred in the tenant's public housing unit. Id. at 188. However, the tenant claimed that she had no knowledge of the activity and that the alleged dealer was brought to the unit by the tenant's daughter without the tenant's knowledge. Id. at 190. As a result, the trial court entered a judgment of no cause for action against the PHA. Id. at 191.

Once again applying Rucker, we held that an innocent tenant may nonetheless be evicted under the terms of his or her lease. Id. at 193-94. However, echoing the cautionary chord struck in Oakwood, we urged the PHA to "reconsider its determination in light of the evidence presented at the trial." Id. at 194. In light of N.J.S.A. 2A:18-61.1(e)(2), we also laid out two factors for trial courts to consider: (1) whether the tenant "'substantially breached or violated' any covenant or agreement in the lease pertaining to the illegal uses of CDS in the Authority's premises"; and (2) whether "the relevant lease terms conform to applicable federal guidelines." Id. at 193-94.

In this case, the trial court's findings satisfy the factors enumerated in Long Branch. Ford's lease states that all drug-related offenses are "serious violation[s]," satisfying the first factor. See ibid. Regarding the second factor, the record establishes that the lease also "conform[s] to applicable federal guidelines." See id. at 194. However, these findings do not end the inquiry.

The trial court was obligated to review the JCHA's determination under an abuse of discretion standard. See Oakwood, supra, 352 N.J. Super. at 474 (stating that "Rucker does not mandate eviction; it permits it after suitable weighing of positive and negative factors"). The New Jersey Supreme Court has recognized that "[j]udicial discretion connotes conscientious judgment; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954). "In other words, a functional approach to abuse of discretion examines whether there are good reasons for [a reviewing] court to defer to the particular decision at issue." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).

Here, because the informal hearing did not occur on the record and plaintiff did not provide Ford with a written determination, the trial court could only rely on the testimony adduced at trial to ascertain how plaintiff reached its decision to evict. Stevens's testimony accomplished little in this regard: after originally testifying that she took several mitigating factors into account, Stevens admitted on cross-examination that she only considered Ford's personal innocence. This inconsistent testimony alone cannot justify a finding that plaintiff properly exercised its discretion, yet Stevens's statements constitute the only evidence in the record regarding the JCHA's decision to evict Ford.

In view of the foregoing, we conclude that the trial court's review of plaintiff's decision was inadequate. Because plaintiff was vested with the discretion to evict tenants on a one-strike basis, the trial court should have reviewed the JCHA decision for an abuse of that discretion. As in Oakwood, the record in this case is insufficient to support the trial court's judgment.

Reversed and remanded. Jurisdiction is not retained.

1 This form contains information gathered by the JCHA after a tenant submits his or her recertification paperwork.

2 "Elements of due process" are defined as follows:

 

[A]n eviction action or a termination of tenancy in a State or local court in which the following procedural safeguards are required:

 

(1) Adequate notice to the tenant of the grounds for terminating the tenancy and for eviction;

 

(2) Right of the tenant to be represented by counsel;

 

(3) Opportunity for the tenant to refute the evidence presented by the PHA including the right to confront and cross-examine witnesses and to present any affirmative legal or equitable defense which the tenant may have;

 

(4) A decision on the merits.

 

[24 C.F.R. 966.53(c).]

3 Section 8 landlords are granted the same degree of discretion as PHAs. Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467, 474 (App. Div. 2002).