Court caustic in drug evictions case:Justices criticize argument favoring Oakland tenants

http://www.oaklandtribune.com/Stories/0,1002,1865%257E414070%257E82%257E,00.html

Wednesday, February 20, 2002
Court caustic in drug evictions case
Justices criticize argument favoring Oakland tenants

WASHINGTON -- An attorney for four Oakland residents who were thrown out of public housing because they could not control their relatives' drug use took a verbal beating Tuesday before the U.S. Supreme Court.

In a case that tests the national one-strike-and-you're-out policy for federally subsidized housing, attorney Paul Renne argued that the law allowing housing officials to evict an entire household because of one member's drug use is fundamentally unfair.

Tenants such as Pearlie Rucker, Willie Lee, Barbara Hill and Herman Walker -- all between the ages of 66 and 80 -- should at least be allowed to proclaim their innocence before an eviction court, he argued.

"The end result...is to throw them into the streets," Renne said, adding that housing officials should not be "judge and jury as to whether innocent tenants can summarily be evicted from their homes."

But skeptical Supreme Court justices on Tuesday questioned why the tenants should be treated differently than anyone else who breaks the conditions of a lease.

"The Housing Authority wants to put the responsibility on the tenants. It seems to me perfectly reasonable," said Justice Antonin Scalia.

The case pits officials who say they need broad leeway to purge public housing of drugs against those who fear the tentacles of America's zero-tolerance drug policy have extended too far.

In 1998, Congress gave housing officials the authority to evict anyone implicated in a drug infraction. But those laws were only occasionally enforced until 1996, when then-President Clinton made a series of tough-on-drugs campaign pledges.

Since then, housing officials have interpreted the policy to mean that tenants can be thrown out of their homes even if they are unaware of guests' or relatives' actions, and even if the illegal activity takes place away from public housing property.

Rucker, 66, got an eviction notice from the Oakland Housing Authority after her mentally disabled daughter was caught with cocaine three blocks from their apartment. Lee, 73, and Hill, 67, were evicted when their respective grandsons were caught smoking marijuana together in the complex's parking lot. Walker, 79, was kicked out when his caretaker was caught using cocaine in his apartment.

"The Housing Authority needs the authority to act where it believes it needs to act," said Gary Lafayette, a San Francisco attorney representing the federal agency.

Noting that Hill and Lee live in an eight-unit complex in a neighborhood of single-family homes, Lafayette argued that smoking pot in the parking lot "does not only affect members of the housing complex itself, it affects the community at large."

Justice Sandra Day O'Connor expressed sympathy for evicted tenants.

The law, O'Connor said, "does seem to operate in a rather Draconian fashion. One wonders why the government wants to take such an extreme position, even though it lawfully could."

But she and other justices noted that the law does not offer any exception for innocent or ignorant tenants.
Justices also appeared to dismiss the defendant's argument that tenants should be allowed to argue their innocence before an eviction court.

"You must afford them due process," Renne said. "These tenants have a right to establish that they should not be punished because of somebody else's conduct."

Saying that the tenants bypassed normal eviction proceedings by filing a lawsuit and emphasizing that the only issue before the court was whether housing officials were being more aggressive than Congress intended, many justices rejected Renne's reasoning as irrelevant.

"You are challenging something that you have no standing to raise in this court," said Justice Ruth Bader Ginsburg.

"The argument is just extremely weak," said Chief Justice William Rehnquist.

Justices Rehnquist, Scalia and Anthony Kennedy emphasized that the zero-tolerance policy was clearly stated in the lease agreements that the public housing tenants signed.

"I guess I'm still puzzled why a tenant can sign a lease and then challenge it," Kennedy said, asking Renne, "You think this is irrelevant, that the tenants signed a lease?"

Scalia noted that state laws allow the government to seize automobiles that are used in drug offenses, whether or not the car owner knew about the illegal activity.

"Why is this any different?" he said, adding that housing tenants may have even fewer rights because their homes belong to the government.

Justice John Paul Stevens asked if there was any procedure to ensure that housing officials do not abuse the policy. And Justice Clarence Thomas, who is known for rarely questioning attorneys during oral arguments, asked Lafayette to describe the extent of drug problems on public housing property.

According to Lafayette, more than a quarter of all drug arrests on or near Oakland HUD property since 1978 occurred during the past year.

After the hearing, Lafayette said officials don't know whether the one-strike policy curtails drug behavior.
After the housing authority moved to evict the four Oakland tenants, they sued to keep their homes.
Rucker, Lee, Walker and Hill will remain in their homes until the case is resolved, which could be later this year.

After a district court blocked the agency from terminating the leases, a three-judge panel of the 9th Circuit appellate court upheld the eviction policy.
That ruling was withdrawn soon after when the court voted to rehear the case with an 11-judge panel. In a 7-4 decision, that larger panel ruled in favor of the tenants.