Asymmetrical Information

From the desk of Jane Galt:

Gary Farber takes me to

Gary Farber takes me to task for my post on public housing and drug use, saying that I read the decision incorrectly. I didn't, but I apolologize if my post implied that the issue is whether criminal tenants can be evicted. The issue, of course, is whether criminal residents who aren't primary tenants can be evicted.

Public Housing authorites have had and do have, the authority to evict criminals, people who have broken the law. That wasn't at issue. In the slightest. In the least. So I have no idea what Megan McArdle is on about.

What was at issue was whether public housing authorities can evict people who have broken no law, and have no awareness of any law being broken, merely because someone in their household used drugs at one time, at some entirely different place, utterly without the knowledge of the primary renter.

Which is a whole different kettle of squid from what Megan McArdle says she is concerned with, and which is why this went up to the Supreme Court, whereas the utterly settled issue of whether criminals can be evicted certainly need not and did not.

I may be misreading the opinion. But from what I have gleaned, the opinion is indeed on whether the behavior of secondary defendants is grounds for eviction. And it was directed at people who say, "Well, I didn't know little Fred was using drugs" or "Well, I can't control him". I worked in the public housing sector in the mid-nineties, and while I certainly could have missed a decision that allowed the eviction of primary tenants for the behavior of those who live with them, this was indeed a huge problem back then, and not one that the Court had addressed.

The Supreme Court overturned the Court of Appeals, and held that tenants may be evicted regardless of whether the tenant knew, or should have known, of the drug-related activity. Specifically emphasized in the decision is that ... any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about.... [...]

The court [of Appeals --ed] ultimately adopted this reading, concluding that the statute prohibits eviction where the tenant for a lack of knowledge or other reason, could not realistically exercise control over the conduct of a household member or guest. Id., at 1126. But this interpretation runs counter to basic rules of grammar.

Are we clear here? Third-party actions that it isn't reasonable for the tenant to have known about are grounds for eviction, because of the grammar of the law, says SCOTUS.
Pause and marvel at that fine "strict constructionism." Imagine what one would have said if that was the reasoning of a Soviet court.

Keep in mind two things: the public housing authorities are dealing with an enormous problem of tenants claiming that they "didn't know" about drug use going on in their house, and thereby evading responsibility. Some of them probably didn't. But some of them obviously did, and the Housing Authority couldn't do squat. The opinion also, as far as I can tell, is issuing a ruling on whether people can be evicted for behavior of the secondary tenants that the primary tenants can't control. Hard on the primary tenants -- but sons, boyfriends, daughters, etc. that the tenant "couldn't control" have also been historically a huge source of crime in the projects. If you can't evict the primary, how do you get rid of the sixteen year old of whom that tenant is a legal guardian?

The agency made clear that local public housing authorities' discretion to evict for drug-related activity includes those situations in which [the] tenant did not know, could not foresee, or could not control behavior by other occupants of the unit. So much for individual responsibility. No, the new rule is collective responsibility. Conservatives and libertarians have long rightly held popular the meme that zero-tolerance laws and regulations were an absurd, if not inane, over-reaction of the liberal nanny-state, despite the fact that most liberals agree. Here is another case one would think is an example of zero-tolerance run amuck. But somehow Megan McArdle disagrees; based on what she wrote, I have to wonder if she read either the decision, or the story she linked to.

I don't necessarily agree with the particular application the housing authority is making of zero tolerance laws. Farber goes on to talk about the four cases, which are, of course, extremely disturbing; the Times rendition makes it sound as if the housing authority is evicting people because their grandson smokes the occasional mary jane in the parking lot. I say "of course" because those cases were hand-picked by the activist groups that pressed the case for maximum sob-appeal; most such cases I heard about were more along the lines of "her thug of a grandson is dealing from her apartment, but she says she doesn't know anything about that, and anyway, she's afraid of him."

Bad cases make bad laws. The Supreme Court was not ruling on whether these four people deserved to be evicted; it was ruling on a principal. The question was whether you can, or cannot, evict primary tenants from public housing for the behavior of those who live with them, even if they can't control that behavior. I say yes. It's hard on the tenants, but easier on their neighbors. So did the Supreme Court. Whether or not zero-tolerance drug policies are a good idea, or drugs should be legal, or conservatives are mean, is not the issue.

UPDATE: Here's a summary of the decision, via Edward Boyd

In Department of Housing and Urban Development v. Rucker (00-1770), Respondents were threatened with eviction from their public housing by the Oakland
Housing Authority after persons associated with Respondents' households were found to have engaged in drug-related criminal activity on or near the premises. The basis for the evictions was a clause in Respondents' leases that requires tenants to "assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in . . . [a]ny drug-related criminal activity on or near the premises." The clause closely tracked the language of 42 U.S.C. § 1437d(l)(6), which provides that each "public housing agency shall utilize leases which . . . provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such 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." HUD, in turn, promulgated regulations under this statute that
allowed local housing authorities to consider all of the circumstances in deciding whether to evict tenants for this type of infraction; HUD further clarified that such tenants could be evicted even if "[the] tenant did not know, could not foresee, or could not control behavior by other occupants of the unit."

Respondents sued HUD , OHA, and OHA's director in Federal court after the OHA began state-court eviction proceedings. Respondents argued that HUD's application of the statute to "innocent" tenants violated the Administrative Procedures Act (i.e., was an unreasonable interpretation of § 1437d(l)(6)) and, alternatively, that the statute is unconstitutional. The district court agreed (with the first argument) and entered a preliminary injunction in Respondents' favor. A Ninth Circuit panel reversed, but the en
banc posse reversed and reinstated the injunction.

The Court today reversed, with the Chief writing for all participating Justices (Breyer sat this one out-presumably as a result of his brother's role as district judge here and not because he signed one of these leases when occupying his swank-o Georgetown pad). Although dragging on a bit by his standards, the Chief quickly explained that § 1437d(l)(6) unambiguously requires lease terms giving local housing authorities the power to evict tenants for household members' drug-related activities, without regard to the tenant's knowledge of the activity. The word "any" clearly modifies "drug-related criminal activity," and, therefore, a knowledge requirement is not consistent with the statute. Moreover, although "under the tenant's control" obviously modifies "other person," it would be nonsensical for it also to modify "member of the tenant's household" and "guest," as the en banc Ninth Circuit found. That interpretation, of course, would deprive the disjunctive "or" of its meaning, and no one wants to see that happen.
Furthermore, elsewhere in the 1988 Anti-Drug Abuse Act that gave us § 1437d(l)(6) Congress expressly imposed an "innocent owner" defense where it wished to do so. The plain language therefore makes it unnecessary to resort to legislative history, but, even so, that effort would not support Respondents' position.

The Chief then took a moment to reject the en banc Ninth Circuit's attempt to rely on the canon of constitutional avoidance to read a knowledge requirement into the statute. After reiterating that avoidance is unnecessary because the language is unambiguous, the Chief went on to dismiss that court's suggestion that the lease provision presented problems under the Due Process Clause. Not only had Respondents contracted with the government for these lease provisions, he explained, but also they would receive adequate notice of any deprivation in their state-court eviction proceedings. Revealing that his main beef was with that insolent Ninth Circuit, the Chief relegated the Respondents' constitutional arguments to a lowly footnote, simply adopting Judge O'Scannlain's refutation for the initial panel of the First Amendment and Excessive Fines Clause challenges.

In other words, not only did the court rule on a broad array of issues on secondary tenants; it also allowed for broad discretion on the part of the HUD authorities. The authoritites may have made a bad call on some of the cases, but that doesn't give those tenants a constitutional case.

Posted by Jane Galt at March 28, 2002 10:09 AM | TrackBack | Technorati inbound links