Between Rucker and a Hard Place: The Due Process Void for Section 8 Voucher Holders in No-Fault Evictions

By Zmora, Michael | Northwestern University Law Review, Fall 2009 | Go to article overview

Between Rucker and a Hard Place: The Due Process Void for Section 8 Voucher Holders in No-Fault Evictions


Zmora, Michael, Northwestern University Law Review


INTRODUCTION........................................................................................................... 1962

I. A HISTORY OF AMERICAN PUBLIC HOUSING: CONFLICT OVER LOCAL DISCRETION, DUE PROCESS RIGHTS, AND CRIME..................................... 1964

A. The First Discretionary Period: Early Public Housing ............................ 1965

B. The Due Process Revolution in Public Housing ....................................... 1966

C. Crime and Public Housing. ....................................................................... 1968

D. The Anti-Drug Abuse Act of 1988............................................................. 1969

E. The One Strike Policy................................................................................ 1971

II. THE RUCKER CASE AND ITS AFTERMATH............................................................ 1972

A. Department of Housing and Urban Development v. Rucker..................... 1972

B. Tempering Alarm: HUD's Response to Rucker........................................ 1973

C. Judicial Expansion of Rucker ................................................................... 1974

III. THE EFFECT OF RUCKER ON THE SECTION 8 PROGRAM ........................................ 1975

A. The Section 8 Program.............................................................................. 1975

B. One Strike Under Section 8. ...................................................................... 1978

IV. DUE PROCESS PROBLEMS WITH RUCKER EVICTIONS BY SECTION 8 LANDLORDS ................................................................................. 1980

A. Comparison of Motives of PHAs and Section 8 Landlords ....................... 1981

B. Inferior Due Process Under Eviction by Section 8 Landlords .................. 1985

C. Seeking Solace in Equitable Defenses....................................................... 1986

V. CLOSING THE GAP: REMEDIES FOR THE DUE PROCESS VOID ............................... 1987

A. Congressional Action................................................................................ 1987

B. Action by Local PHAs............................................................................... 1988

C. Judicial Intervention.............. ................................................................... 1989

VI. CONCLUSION........................................................................................................ 1990

INTRODUCTION

By now, it's an old story. A woman, often elderly, is evicted from her public housing unit, not because she did anything wrong herself but because a guest, a child, or a grandchild used drugs within the vicinity of her apartment.1 These evictions have become more common since the Supreme Court's 2002 decision in Department of Housing and Urban Development v. Rucker.2 In Rucker, the Court addressed the scope of 42 U.S.C. § 1437d(l)(6), a law requiring that public housing authorities use leases that provide for termination for "any drug-related criminal activity" by public housing tenants, members of their household, or their guests on or off public housing premises.3 The Court held that the law vested public housing authorities with the discretion to evict regardless of the tenant's knowledge of the prohibited activity.4 This no-fault standard has been applied extensively in the nearly eight years since Rucker. Courts have expanded the holding both in reach and scope.

Numerous state courts have extended Rucker to sanction no-fault evictions for other criminal activity, including even nonviolent crimes such as forgery.5 Further, they have applied Rucker's no-fault standard to other federal programs, including the Section 8 housing choice voucher program.6 hi doing so, courts have overlooked the significant differences in administration between voucher programs and the public housing owned and operated by a government agency in Rucker. …

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