THORPE v. HOUSING AUTHORITY

Transcript: 

Argument of James M. Nabrit, III

Chief Justice Earl Warren: Number 20, Joyce C. Thorpe, petitioner, versus Housing Authority of the City of Durham.

Mr. Nabrit.

Mr. James M. Nabrit, III: Mr. Chief Justice and may it please the Court.

This case is here on certiorari for the second time to review a judgment of the Supreme Court of the State of North Carolina affirming an order that petitioner and her four children be evicted from a low-income public housing project in Durham, North Carolina.

The question for decision is whether tenants in federally financed projects, operated under the United States Housing Act of 1937 as amended, may be evicted from their homes and their federal benefits terminated without being told any reason or given any opportunity to be heard in their own defense before the decision to evict is made by the Housing Authorities.

Now, let me emphasize at the outset that, in our view, the fundamental underlying question here is whether poor people who depend on the government for the necessities of life, for shelter, whether poor people will get the same kind of procedural rights and protections that our citizen -- that our system has long given to more fortunate citizens and their contacts with government administrators.

Justice Abe Fortas: Is that really the issue or an underlying issue here?

Do people who have leases with private landlords have the, as a constitutional matter, the right to for which you're contending here?

Mr. James M. Nabrit, III: No, Your Honor.

I wouldn't contend that.

I said --

Justice Abe Fortas: Well, where do you get --

Mr. James M. Nabrit, III: I said more fortunate citizens and their contacts with the government.

Justice Abe Fortas: That -- well, tell me about that.

Where do you get that flavor in -- on the constitutional aspects of this case?

Mr. James M. Nabrit, III: It's our position, may it please the Court, that it's a common place of administrative law when, in all sorts of situations, when a professional man's license is threatened to with revocation, when a security, as in the Goldsmith case or in the Willner case last year, if -- to get a notice in a hearing, it --

Justice Abe Fortas: Well, let's take a comparable case if we can think of one.

Let's suppose that the Department of the Interior has a -- lent a lease with a concessionaire to occupy premises in a park area, and the lease says that it's terminable, that this is a month-to-month lease and it's terminable upon 30 days notice, and there's no provision for notice or a hearing or a statement of the reason why the lease isn't being renewed.

Now, does the concessionaire have a constitutional right to be heard?

Mr. James M. Nabrit, III: Well, the thing that I -- the difference I perceive is the difference in the purpose of the program because the purpose of this program under the Housing Act is to provide housing for poor people.

It's a government benefit program.

So that, to the extent that there's -- that there are differences between government benefit programs and incidental programs to the management of connected with inc --

Justice Abe Fortas: I know --

Mr. James M. Nabrit, III: Programs could -- incidental to the management of government buildings.

You may have different principles to apply.

So, my argument is not addressed to that, Mr. --

Justice Abe Fortas: Well, I don't think that's important, Mr. Nabrit and this is a terrible important and new area of Constitutional Law to which you're addressing yourself now.

And, whether it is appropriate to analyze it in terms of giving the poor people rights that are given to their more fortunate fellow citizens or not is a problem of the utmost consequence, I think.

It's a matter of developing cons -- the developing application of constitutional principle.

And I, myself, believe that it's one that, and I'm sure you agree with me, that requires the most prayerful and careful analysis on the part of us and, perhaps, the game is not advanced when we merely refer it -- when we present a case like this in terms of equalizing the rights of the poor, vice versa the government, with the rights of the rich because you first have to establish, if I may respectfully suggest it to you, you first have to establish that there is a cognate or analogous right given to more fortunate citizens, vice versa their government.

Mr. James M. Nabrit, III: Well, I agree that these issues about the rights of the poor are a challenge to us all, but there are none without difficulties.

Let's look at the position of the Housing Authority in this case.

They claim, after all that's transpired, after three years of this litigation, they still maintain that they don't even have to have a reason, they don't have to have any cause to evict a low-income family from its home.

They claim that they have no duty to tell the town anything or listen to anything that the tenant has to say.

Their position is, in some, is that these destitute people who pend on -- who depend on the government for shelter don't have any rights, that the auth -- procedural rights that authority is bound to respect.

Say I think it is relevant.

The point is not lost on poor people and that they do understand what's going on when the legal system treats them this way.

Justice Abe Fortas: Well, what --

Mr. James M. Nabrit, III: Now, let's look at the --

Justice Abe Fortas: Mr. Nabrit, I'm going to leave you alone after this, but it's a problem of fundamental consequence in this and other cases, many other cases, and I suggest to you that perhaps two possible lines of approach.

One is, it's sort of a Gideon line of the discrimination between the poor and the rich with respect to essential governmental rights.

The other, and it may be, and this is for you to argue and not for me.

If -- and, it may be the one that's applicable to this case.

The other is that in this kind of governmental activity, that is to say the rental of residential property whether it's middle-income, high-income, or low-income, the government takes on certain responsibilities as a constitutional matter which a private landlord does not have.

I don't know whether that's right or wrong, but what I'm suggesting to you is the possibility that that may be the basic premise to which one must address for himself.

Mr. James M. Nabrit, III: Mr. Justice Fortas, I think I agree with that.

I don't contend that there's a major equal protection component to the case.

I think it's a problem.

Of the principal problem in the case is what sort of procedures due process requires.

When the government is landlord, it deals with people.

I don't disagree with that at all.

Let's begin with a few words about this Federal Law, the Housing Act of 1937, so that we have a statutory frame of reference for the consti -- to discuss the constitutional questions.

The Congress has declared that the policy of using federal funds and credit to remedy the unsafe and unsanitary housing conditions and their acute shortage of decent, safe, and sanitary dwellings for families of low-income.

Now, Housing in this particular program is provided only for families “who are in the lowest income group and cannot afford to pay enough to cause private enterprise to build an adequate supply of decent, safe, and sanitary dwellings for their use.

Now, the subsidies in this program, although it's operated by Local Housing Authorities, the subsidies are almost entirely 100% federal.

The permanent financing of these projects is done by bonds sold by the local authorities.

And if the Federal Law subsidizes these bonds in several ways.

First, they make the interest n the bonds federally tax-exempt which has the effect of lowering the interest rate.

Then, the Government of the United States places its credit, the credit of the United States, to assure the payment of the bonds and under an annual contributions contract with the local authorities, the United States agrees to pay up to 100% on the debt service on the bonds.

The local authorities apply their net receipts to the payment of the debt service and any difference the United States makes up.

With some projects, the United States does pay 100% of the debt service.

In addition, the United States makes ca -- additional cash contributions for elderly families and on account on displaced families, families displaced by federal projects and, finally, the United States pays the administrative cost of the Housing Assistance Administration, a part of HAA itself.

Now, the State and Local Governments, rather than subsidizing the projects, in some case actually gain revenue from there by receiving payments in lieu of local real estate taxes from these housing authorities which, under the statute, may amount to up to 10% of the rental income of the projects.

There are now 2.6 million people in the United States living in these federally assisted projects.

Perhaps a quarter of a million of them have moved in these projects since this case was last argued here a year-and-a half ago.

The program is rapidly expanding.

About half of these people are Black, about a third of them are elderly, their medium-family income is little over $2,700, and the average rent they pay is about $50 and those figures are for 1967.

Of The petitioner was found eligible as she moved into her apartment at $29 a month in November of 1964.

Her lease gave -- her lease was a month-to-month tenancy.

It gave both the tenant and the Authority the right to terminate by giving 15 days notice before the end of any month, and she lived in the project without any incident for 8-9 months.

In August -- on August 10, to be precise, of 1965, Mrs. Thorpe was elected president of a tenant's organization that was being organized in the project.

And, the very next day, the authority sent her a notice that her lease was terminated at the end of that month.

Several times she asked for a hearing, she was told only that the authority was not required to give a reason for -- or a hearing.

And, when she did not move out, this present suit for summary eviction was brought in the State Courts which ordered her eviction.

The State Supreme Court ruled on the first appeal that the lease was terminated the ter -- because the term had expired that the auth -- that the reason the Authority terminated was immaterial and this Court granted review during the October term 1966.

After argument here in this Court, a year-and-a half ago, the case was remanded to the Court below to reconsider it in view of a supervening event in administrative direction directive circular issued by the Department of Housing and Urban Development, which directed that tenants not be given notices to vacate without being told the reasons and an opportunity to reply or explain.

On remand, the Court below again affirmed stating that its prior judgme -- its prior opinion stood.

It stood by it and ruling that the circular was inapplicable because issued after the lease, the termination notice, and the Court orders.

So, Mrs. Thorpe remains in her apartment under stay orders issued throughout these appeals.

Now --

Chief Justice Earl Warren: Could you tell us how the Housing Authority is constituted?

Mr. James M. Nabrit, III: Yes, Mr. Chief Justice.

Chief Justice Earl Warren: Would you do that briefly please?

Mr. James M. Nabrit, III: Yes, Mr. Chief Justice.

The Authority is created under a North Carolina statute called the North Carolina Housing Authorities Law.

It's general statutes of North Carolina Section 157.1.

The -- it's the -- well, actually, Section 157.4 describes in some detail the process.

Petition there could be filed by petition by taxpayers.

They have to have hearings to determine whether or not there's a housing shortage in the community.

They have to pay certain specific findings made.

Then, the authority is incorporated under state law as a governmental agency -- under state law.

Chief Justice Earl Warren: How did the Commissioners select --

Mr. James M. Nabrit, III: How are they chosen?

I'm -- my -- Mr. Edwards has indicated they're appointed by the mayor of the municipality.

I can't find the statutory reference to that.

Chief Justice Earl Warren: Alright.

Just pass it then.

Go right ahead.

Mr. James M. Nabrit, III: The mayor of the council here.

I'm sure it's in --

Chief Justice Earl Warren: What page --

Mr. James M. Nabrit, III: 157-4 which is the statute.

Chief Justice Earl Warren: Yes, what page is that in?

Mr. James M. Nabrit, III: It's page 9 (a) in the petitioner's brief.

Chief Justice Earl Warren: Yes.

Mr. James M. Nabrit, III: 9 (a) appendix.

Now, as I said at the beginning, it seems to us that it's a common place in Administrative Law that governmental agencies grant notice and hearings before taking actions which significantly disadvantage a citizen.

Particularly, this is true where the action is based on what amounts to adjudication that a citizen is guilty of misconduct, in effect.

Our tradition of due process rejects the idea of ex parte kind of missions.

Mr. Justice Frankfurter once put it that fairness can rarely be obtained by secret one-sided determinations of facts decisive of rights, and the Court has applied that view.

The Court has applied that principle in numerous cases.

As recently as a few terms ago, a case called Willner against the Committee on Character and Fitness, the principle was applied to a lawyer who was -- whose profess -- whose right to practice law was at stake.

It was applied as long ago -- it was applied to Meat Packers, as long as -- ago as the famous Morgan cases.

The same principle was true to the engineer that was denied a security clearance and, therefore, whose right to earn a living was at stake in Greene against McElroy.

So, I emphasize here that the issue in this case is primarily, I think, a question of procedural due process, to use Mr. Justice Brandeis' phrase, “due process in the primary sense of an opportunity to be heard and to defend.”

I think the case does not involve whether there's a right to public housing for all -- for all the poor.

Think it does not necessarily involve even what grounds might justify evictions but, rather, only what procedures due process of law requires if benefits are to be terminated.

Justice Abe Fortas: But that assumes that there's something -- some sort of right other than the rights conferred by the lease here.

Mr. James M. Nabrit, III: It's --

Justice Abe Fortas: And that is a proposition, if you're -- until you get to the other phase of your case, that's a proposition that, I suggest, you got to face up to.

Is there some right other than the right conferred by the lease here and --

Mr. James M. Nabrit, III: Yes.

I would submit that the right is the right to be treated fairly --

Justice Abe Fortas: Well, that's all --

Mr. James M. Nabrit, III: By the governmental agency when it's determining whether or not to terminate your benefits under a federal benefit program is the right --

Justice Abe Fortas: Well --

Mr. James M. Nabrit, III: It's the right -- the right to fair procedures.

Justice Abe Fortas: Here, the parties entered into a lease and the -- so far as the lease is concerned, Mrs. Thorpe may have been -- her lease may have been allowed, it may have terminated just because they were tired of having her there, no reason at all.

In this record, we can't really assume, can we, that there was a determination that she was -- that her lease was terminated because she was the leader of this tenants group or that she was guilty of any sort of misconduct or even if that was considered.

Mr. James M. Nabrit, III: Well, to address myself, if I may, Mr. Justice Fortas, to the first part of your question as to whether or not they can terminate just because they were tired of having her here -- or having here there.

It seems to me that you have to focus on the statutory framework and the permissible kinds of things the authority can do under the statute.

A pri -- In deed, a private landlord could evict someone because he wants to make more profit or he wants the apartment for his brother-in-law or because he wants to tear a building down or anyone of the reasons you could think.

Justice Abe Fortas: Right.

Mr. James M. Nabrit, III: But, the Housing Authority can't have these reasons.

Justice Abe Fortas: No, that's --

Mr. James M. Nabrit, III: The purpose of the program --

Justice Abe Fortas: That's exactly what they want.

Mr. James M. Nabrit, III: Yes, the purpose of the program is to house poor people, and they can't leave it vacant and obey their duty under the statute.

Justice Abe Fortas: Well, what you're saying is that, from the fact of that, the purpose of the program is to provide housing for poor people.

There derives a procedural right, that procedural right being that before the lease is terminated or allowed to expire by its terms, there has to be a statement of charges or a statement of reasons and an opportunity for a hearing which assumes, too, that there's got to be a reason -- a good reason.

Mr. James M. Nabrit, III: That's right.

There has to be a reason under the statute.

Justice Abe Fortas: Well, the statute --

Mr. James M. Nabrit, III: There would have to be a --

Justice Abe Fortas: What statute say about it?

Statute doesn't say anything about it, does it?

Mr. James M. Nabrit, III: Well, the statute does give us some guidelines, Section 1410 (g) which is in our brief at 14 -- page 3 (a) of the appendix, 1410 (g) (2), does layout the general considerations that the government once considered in this program.

Let me read it.

It says that it refers to admission policies, but I take it that the admission policies and the right to remain, that Congress would want the same policy, general principles, filed.

So, as the Public Housing Agency shall adopt and promulgate regulations, establishing admission policies which they'll give full consideration to its responsibility for the re-housing of displaced families to the applicant status as a serviceman or veteran or relationship to a serviceman or veteran or disabled serviceman or veteran to the applicants age or disability, housing conditions, urgency of housing need, and source of income, provided that in establishing such admission policies, public housing agencies shall accord families of low income such priority over single persons, as it determines to be necessary to avoid undue hardship.

So, for example, if a hearing developed that a housing agency was evicting a family in order to put single persons in or not giving preference to the veterans, they would be doing something that was quite opposed to this after cost.

Justice Thurgood Marshall: Mr. Nabrit, when I assume that if Mrs. Thorpe is -- what happens, she'll be replaced with another for a family exactly the same position that she's in?

Mr. James M. Nabrit, III: Yes, that's correct.

That's, roughly, yes.

Justice Thurgood Marshall: Well, exactly what constitutional provision do you rely on for your due process argument?

Mr. James M. Nabrit, III: Mr. Justice Marshall, your question suggests to me that it's relevant to analyze what the tenant has at stake in this, what the Authority has at stake in determining what procedures fairness requires.

Our position -- what we rely on is the Due Process Clause.

Now, it seems to me it's useful to look at the interest of a tenant who was in a low-rent federal housing project.

In the first place, it -- the general framework of it is pretty well-defined by the state and federal statutes.

We know merely from looking at the statutes that the housing project wouldn't be built in the first place without specific finding that there's a shortage of housing in the community.

Justice Thurgood Marshall: Maybe I have not made myself clear.

Let me try again.

But for the fact that she was elected president of this Tenants Union, would you be here?

Mr. James M. Nabrit, III: I think that the issue we're -- the First Amendment component is a part of our case, but my answer is yes because these authorities contend that they have the right to kick people out without telling time any reason why and I think that, alone, raises the due process question, the question of procedural facts.

Justice Thurgood Marshall: It's --

Mr. James M. Nabrit, III: Why wouldn't it be?

Justice Thurgood Marshall: Only because it's federal money.

Mr. James M. Nabrit, III: Because it's federal -- yes.

Justice Thurgood Marshall: So that a member of the Authority who has a private building to put somebody out without a hearing, but he could not vote to put somebody out in a public effect without a hearing?

Mr. James M. Nabrit, III: I can assume that that's so and I can assume that argument.

I don't address myself to that question.

Justice Thurgood Marshall: Well, you don't recognize the fact that when a private citizen makes a contract with another private citizen for a rental of an apartment in which he agrees that he can be thrown out without notice, that that can't be enforced?

Mr. James M. Nabrit, III: I agreed with that.

Agreed with that.

I said I assume that this case doesn't implicate the rights of non-governmental agencies, in terms of their leases.

This case depends on the fact that this is a govern -- that this is a government of the landlord.

That's -- I was about to address myself to what the tenant has at stake.

It seems to me, just looking at the statute alone that, obviously, if tenants who are eligible to get in these projects are evicted, they stand to lose the only chance they have to homes which they can afford which are decent, safe, and sanitary.

So that, what the tenant has at stake is of great value, whether you call it a right, a privilege, or what not.

Justice Abe Fortas: Your time --

Mr. James M. Nabrit, III: What's at stake is the right to have -- I'm sorry, Mr. Justice Fortas.

Justice Abe Fortas: I'm sorry.

Your time is about up.

Can we dispose of this case on the circular, the HEW direction?

As I -- am I correct in remembering, it's quite a while since I read the briefs and record in this case but, am I correct in recalling that the local authority held that circular direction by HEW was not retroactive?

Mr. James M. Nabrit, III: It's what the Court below held, yes.

Justice Abe Fortas: And the Court below held that and can't we dispose of the case if we should conclude that the, as we read this re-construed direction of HEW, it is retroactive.

Wouldn't that dispose of the case?

Mr. James M. Nabrit, III: I believe that would be open to the Court.

However, I would urge that the Court dispose of the case on the constitutional grounds that the Court first agreed to review the case.

I think that there are many other cases pending which involve these same issues.

The housing program is growing everyday and the issue needs to be decided.

Justice John M. Harlan: Do you think --

Mr. James M. Nabrit, III: And that the decision on the circular -- I'm sorry, Mr. Justice Harlan.

Justice John M. Harlan: I'm going to ask you, do you think the circular can be retried, do you think the terms of the circular go as far as your arguments that the due process rights go?

Mr. James M. Nabrit, III: Well I -- not entirely.

I think the c -- that the circular would have to be construed in order to give meaning, give content to this general provision that you should have -- that they'll have a conference that the circular is not very specific.

It seems to me --

Justice John M. Harlan: -- required notice opportunity to respond and drop them out of there?

Mr. James M. Nabrit, III: Well, it's a little more specific.

It indicates, for example, some details about what the notice has to contain, but it's not very clear, you're correct.

It's not very clear.

Justice John M. Harlan: Isn't that in the jury hearing?

Mr. James M. Nabrit, III: No.

Justice John M. Harlan: You're contending your due process argument is that's what you have?

Mr. James M. Nabrit, III: No, we -- Mr. Justice Harlan, we do not contend for a full-fledged evidentiary hearing.

We think that the Department of Housing and Urban Development can work out something that's practical in the circumstances, but what they do need to be told is that these tenant evictions that these housing authorities have an obligation of fairness and to pay some attention to procedural fairness.

Justice Hugo L. Black: Where would the hearing be held?

Mr. James M. Nabrit, III: It seems to me that it's open --

Justice Hugo L. Black: Before the agency?

Mr. James M. Nabrit, III: Before the agency.

It seems to me that it's --

Justice Hugo L. Black: Do you mean that they're the representative of the Housing Authority?

Is that what you mean?

Mr. James M. Nabrit, III: Yes.

Justice Abe Fortas: But you mean the local Housing Authorities --

Mr. James M. Nabrit, III: Yes.

Justice Abe Fortas: Locally.

Justice Hugo L. Black: Would she be entitled to a lawyer?

Mr. James M. Nabrit, III: I don't believe the Authority could exclude a lawyer or another personal representative or a social worker or some --

Justice Hugo L. Black: In other words --

Mr. James M. Nabrit, III: Family friend.

Justice Hugo L. Black: Now that of course wouldn't apply to a private person or group on the department.

Mr. James M. Nabrit, III: That would not.

Justice Hugo L. Black: You're saying if the government makes a pondering whether -- even if it sets up rules and says you've got to obey them, cannot, like a private apartment, oust someone for failing to have been without giving them a hearing.

Now, could that be taken to Court then that hearing is inadequate?

Mr. James M. Nabrit, III: Well, Mr. Justice Black, I think it's a single -- it's a process, the administrative process and the judicial process in these cases have to be looked at together and that, perhaps, if you get more rights at an earlier stage, that effects the necessary scope of judicial review.

In other words, if you have a very perfunctory administrative proceeding, then you need a full and fair judicial proceeding.

Justice Byron R. White: Well, isn't there one here, in any event, a full fair hearing on the -- in the -- let's assume there's an eviction proceeding brought.

There's a tenant stays in and doesn't obey the notice to quit and there's an eviction proceeding brought.

Can the tenant, at some point in that process, enjoy full due process hearing and urge any defenses to the eviction?

Doesn't state law provide a opportunity for the tenant to challenge that eviction?

Mr. James M. Nabrit, III: I think not.

It seems to me that, under this particular statute --

Justice Byron R. White: Well, that's the way the case got here.

Mr. James M. Nabrit, III: Let me -- the reason I think not --

Justice Byron R. White: That's the way the case got here and there were full findings on what -- on the question of whether this -- whether the alleged reason was the reason or not.

Mr. James M. Nabrit, III: Mr. Justice White, I think not, and for this reason.

It seems to me that the North Carolina law is very clear that the only question open to the Court to decide in the summary vision -- eviction proceeding under this statute is, number one, whether the person is a tenant and, number two, whether they're holding over after the term is over

That's been the law in North Carolina, under this statute as long as the statute has been there.

Justice Byron R. White: Yes, but let's assume --

Mr. James M. Nabrit, III: And then it's entirely consistent.

Justice Byron R. White: Yes, but let's assume for the moment that, in the eviction hearing, the tenant attempts to urge that she was evicted because of -- she exercised some constitutional rights, and North Carolina said “Sorry, we won't listen to this reason, but it was established as a matter of Constitutional Law that North Carolina had to listen to this sort of a reason.

Now, what's wrong with that?

Mr. James M. Nabrit, III: Well --

Justice Byron R. White: You just don't think -- you just don't think that the North Carolina hearing in the North Carolina Courts that a tenant gets is the equivalent of a full due process hearing.

Mr. James M. Nabrit, III: I have -- I really have several answers to that.

The last thing you mentioned is one of them.

That, in fact, in North Carolina, it's not open to you to do this.

Now, I don't deny, for a moment, it's possible to device a judicial proceeding that could give you a hearing on the relevant issues, but I suggest that that's not available now.

The second thing that hasn't been said and I should say, Mr. Justice White, is this, that --

Justice Byron R. White: Well what can it --

Mr. James M. Nabrit, III: There are not any re -- there are not any reasons for which you must evict someone form housing.

Justice Byron R. White: Well, I understand that.

Mr. James M. Nabrit, III: So -- and, finally, it's a discretionary decision --

Justice Byron R. White: I understand that.

Mr. James M. Nabrit, III: By the housing manager.

This -- no one suggested the Court is ever going to make that kind of discretionary judgment.

It's that decision which ought to be made fairly, which ought to be made in accordance with fair procedures and it's that s --

Justice Byron R. White: Tell me the problem with the North Carolina due -- hearing when the landlord brings an eviction notice.

You say the owner brings an eviction case.

The only question that's open is, is the term over and is he still there?

Is that it?

Mr. James M. Nabrit, III: That's it, and there is a -- that's what the statute says.

Justice Byron R. White: When the term is ended because of some right of re-entry based on some act of the tenant.

Isn't there any room for the tenant to challenge?

Let's assume the landlord says “We terminate because you scratched up the walls of the apartment,” and the tenant says “I haven't either.”

Mr. James M. Nabrit, III: That proceeding would be brought under another subsection of the law.

If I could refer the Court to the statute, the North Carolina summary evictions statute, if I had myself, it's at page 21 (a) of petitioner's appendix.

And, it provides for an eviction under subsection 1, when a tenant in possession of real estate holds over after his term has expired.

That's what's involved here.

And, under subsection 2, when the tenant has breached the lease after alleged cause and they proceed under subsection 2, then they allege that the tenant didn't pay rent or the tenants scratched up the walls in breach of the lease, then they have to prove it.

But, if they allege that the term is over, that he's holding over after the lease expired under subsection 1, then that's all they have to prove.

And if the --

Justice Byron R. White: Yes, but the lease --

Mr. James M. Nabrit, III: But, he first page of the reco --

Justice Byron R. White: But the lease expired only because the landlord gave a notice.

Mr. James M. Nabrit, III: That's right.

That's all they have to prove, as I gave the statutory notice.

That's all I have to prove and the lease.

Justice Byron R. White: And, for no -- that doesn't make any difference for what reason.

Mr. James M. Nabrit, III: That's right, and the Supreme Court of North Carolina held that that reason is immaterial.

Justice Byron R. White: Well, I know, but --

Mr. James M. Nabrit, III: And that's entirely in accord with North Carolina practice of it.

Justice Byron R. White: But, why did the Trial Court make some findings on this question?

Because the Trial Court made findings on it and the North Carolina Court didn't -- resided this fact of finding.

Mr. James M. Nabrit, III: I suppose that the Court was being careful, but the Trial Court also said that there was no obligation to give a release.

Trial Court also held that.

Justice Byron R. White: Let's assume for the moment though that there was a full due -- that the tenant -- that could've -- bring to bear all the questions that you think he ought to be able to bring to bear in the administrative hearing.

Just suppose that North Carolina eviction proceeding permitted him to do that.

Would you say there would have to be a constitutional -- maybe the constitutional right to administrative hearing prior to that time?

Mr. James M. Nabrit, III: My position, Mr. Justice White, is that this constitutional right to certain elements of fairness, at some stage of this procedure, anything from the beginning of the administrative procedure to the end of the judicial procedure.

I don't have any rigid notion of where you have to get your rights but, it seems to me, some place in that proceeding, the tenant ought to be -- where the government is the landlord, the tenant ought to be told why he's being terminated, why his benefits are being terminated, and have an opportunity to address himself to that.

In Additionally, it seems to me that, at least on the question of notice of the reasons and some minimal opportunity to address himself to, the tenant ought to have that at the administrative stage.

I say that, particularly where we have low-income tenants who are unlikely to be able to afford lawyers and afford to go to Court, and they certainly can't afford to go to Court to fight an eviction if they don't know why they're being evicted.

It seems to me, the Housing Authority also --

Justice Potter Stewart: Well, that really marks my point.

Do you think this HEW regulation could be read to be re-tried?

Mr. James M. Nabrit, III: Well, I -- yes, I think it can be read to apply to this pending case, and the reason I think that is that it's entirely conventional, it seems to me, to apply new procedural rules to cases where the judgment is not yet final.

I think, further, that's entirely artificial to view this case, as the authority does, as one where they're being deprived of some property because, as we said earlier, they're going to rent the same apartment to somebody else at the same rent.

So that by requiring them to go back and give the tenant the reason she's being evicted, it seems to me, doesn't deprive them of anything.

It just makes them be fair to the tenant.

I wanted to complete an answer to the prior question and say, also, it seems to me, important that the authority to be made to state a reason at the administrative level so that they will have a reason, and so that the reason they later present in Court is not a post factor justification for something that they decide earlier.

It seems to me that the person who makes the decision to terminate government benefits like this ought to be able to be required, if we are to -- if he's to operate under law, he ought to be required to say why he's out.

Chief Justice Earl Warren: Mr. Edwards.

Argument of Daniel K. Edwards

Mr. Daniel K. Edwards: Mr. Chief Justice and, if the Court please.

If -- as Mr. Justice Fortas has suggested, we're at the threshold here of developing some new constitutional concept about the relationship of the poor with the government.

I don't know whether I can supply much thought that's worthwhile, except this, that the philosophy that has been developed in the brief for the petitioner here, at least by quoting certain individuals such as Professor Jones and Professor Rich on the subject, on page 36 and 37 of the brief seems to have followed the line of thought that what we're doing is to give the poor the same rights and their contact with government that is possessed by other people, that is, we equate the thing.

And, that we haven't arrived yet in any case that I know of where they are given some different rights.

Now, when you supply them with a lawyer, because they're poor and can't afford one, you're not giving them additional rights in a sense.

All you're doing is equating them with a fellow who can afford a lawyer.

In this case, you have a lease that is a standard procedure between landlord and tenant.

Now, the question arises, do the Common Law procedures, these Common Law concepts, Common Law or the Statutory Laws that are applicable to everybody in a landlord and tenant relationship, do not they supply reasonable standards of fairness?

Justice Abe Fortas: Well, I'm sure, Mr. Edwards, you understood my questioning of Mr. Nabrit.

My -- what I was trying to find out from him was whether the principle of putting the poor on an equivalent basis with the people who are better off in terms of legal rights, constitutional rights, whether that principle really got him anywhere in this case.

That was my question.

Mr. Daniel K. Edwards: And, I'm sure that it does not because they are placed on an equal basis here.

Now, the only question then is whether he wants to go further than that, and I say not.

That perhaps that is a matter that the Congress should consider as to whether or not they want to make the relationship different and or the state legislature.

Justice Abe Fortas: Or HEW.

HEW pursuant to its -- presumably pursuant to its statutory authority issued a circular here, and that does provide a right, for what it's worth.

Mr. Daniel K. Edwards: The heard circular is the thing that I would like to take up next then, if I may.

Justice Thurgood Marshall: Mr. Edwards, before you get to it --

Mr. Daniel K. Edwards: Yes.

Justice Thurgood Marshall: You do recognize the difference between a housing authority operating under state and federal auspices and a private apartment of its own.

Mr. Daniel K. Edwards: There are differences.

I don't know.

For one, the difference would be that I assume that a Housing Authority could not say “We will require you to sign a statement that you never belong to certain organizations found by the Attorney General to be subversive that has a condition to occupy these apartments.”

You can't do that, or you can't say that “You can't occupy these apartments if you decide to vote or, if you decide to make a speech somewhere, you can't occupy.”

In other words, I think that, to that extent, the Housing Authority is, and perhaps in a different situation, the private landlord, although I wouldn't be adamant in saying that a private landlord might not be constitutionally --

Justice Thurgood Marshall: Well, are you familiar with the Wilmington Bus case?

Mr. Daniel K. Edwards: Sir?

Justice Thurgood Marshall: The Wilmington Bus situation?

Mr. Daniel K. Edwards: Wilmington --

Justice Thurgood Marshall: Well, obviously you don't, but I mean that, once the state takes over, it's not a private business any longer.

Mr. Daniel K. Edwards: That's --

Justice Thurgood Marshall: And, you do recognize the right of HUD to set rules and regulations or not?

Mr. Daniel K. Edwards: No, sir.

Justice Thurgood Marshall: You don't recognize that?

Mr. Daniel K. Edwards: Within the limits of their annual contributions contracts, they do have that right and privilege.

HUD itself recognizes this.

Justice Thurgood Marshall: Well, that's why I wanted to get this preliminary to this circular, because it want to know whether you say this circular is binding or not.

Mr. Daniel K. Edwards: I say it's not.

Justice Thurgood Marshall: It's not, why?

Mr. Daniel K. Edwards: And, the reasons for that are these.

The statute, the Housing -- United States Housing Act of 1937 did provide that HUD could issue certain general rules and regulations to implement the chapter -- the provisions of the chapter, but it also provided in there, just as clear as it could be, that it should deal with Housing Authority stet up -- set up under the state law, as this one was under the state statute, by entering into a contract with them, which is called an annual contributions contract.

It wasn't given the power by any statute to run the Housing Authority setup under the State Law by idict or by rule or by regulation, absent a contract with that agency, that hou -- local Housing Authority.

Had to have a contract, annual contributions contract, and that's in their general power to make rules and regulations was within the framework of the concept that their sole control over this local Housing Authority was by virtue of the contract for annual contributions that it entered into.

And, they had to put the provisions in that contract.

As I say HUD recognizes this.

The petitioner, in preparing this case, directed certain inquiries to her with reference to the s -- the February 7, 1967 circular, and received some answers from HUD in response to their inquiry.

And, you will find those in the petitioner's brief on page 48 (a) of appendix 5.

Back in the back part of the brief is the pertinent one that I would like to call the Court's attention to.

There, HUD says, HUD policy over the years has been to treat the local Housing Authorities as contracting parties under the annual contributions contract not covered by the term “public.”

Material issued from time to time for the guidance of local Housing Authorities in the implementation of the annual contributions contract.

Has, therefore, not been published in federal registry, but local authorities are given actual notice of these matters by supplying the material, manuals, bulletins, circulations, and similar publications directly to the local authorities.

And, the Housing Act didn't require that there'd be inserted in the annual contributions contract any controlling features about eviction or what sort of lease should given to the tenants, and the annual contributions contract itself contain no such provisions.

Justice Thurgood Marshall: Is the Durham Housing Authority abiding by that --

Mr. Daniel K. Edwards: It is --

Justice Thurgood Marshall: Or not?

Mr. Daniel K. Edwards: It is right now.

Justice Thurgood Marshall: It is abiding by it?

Mr. Daniel K. Edwards: It is, yes, sir.

Justice Thurgood Marshall: But it doesn't consider it to be retroactive?

Mr. Daniel K. Edwards: It does not consider to be retroactive and --

Justice Thurgood Marshall: Well, as of tomorrow, a person -- Mrs. Thorpe, if she's put back on a regular stay, that she couldn't be put out without a due process hearing?

Mr. Daniel K. Edwards: We -- I think, as a matter of policy, what the housing authority would do as they're now doing would be to follow the procedures set out in the HUD.

Justice Thurgood Marshall: Well since this case is still being litigated, wouldn't the best way to be is just to get about this?

Mr. Daniel K. Edwards: To forget about the conviction --

Justice Thurgood Marshall: About this one woman, Mrs. Thorpe.

Mr. Daniel K. Edwards: I think that, as a practical matter, the -- unless the Court wants to establish some new concept and make some pronouncements as to constitutional law about the thing, why, that won't be true.

Justice Thurgood Marshall: But couldn't your clients, without any Constitutional Law, pronounce if there's anything else, moot the states?

Mr. Daniel K. Edwards: They could.

Justice Thurgood Marshall: But it hasn't?

Mr. Daniel K. Edwards: They haven't done so, that's correct.

Justice Abe Fortas: Mr. Edwards, perhaps I don't understand you.

Do you -- I assume that everything that was -- all the directions in the HUD manual and in the very circular that's at issue from time to time were binding as a matter of law on the local Housing Authorities.

Do you contest that?

Mr. Daniel K. Edwards: I do, sir.

I don't think that's -- I don't that's correct.

Justice Abe Fortas: On page 31 (a) of the petitioner's brief is an excerpt from the low-rent housing manual.

It says it has a -- HUD has a, or PHA at that time, has established minimum requirements for local authorities, but you take the position that that is -- that it has exceeded its statutory authority in doing so?

Mr. Daniel K. Edwards: Not necessarily, the -- I think that the annual contributions contract, that HUD rights --

Justice Abe Fortas: That exhausts its authority?

Mr. Daniel K. Edwards: That -- the HUD rights, the annual contributions contract and the authority enters into that contract with them.

Justice Abe Fortas: And that exhausts the HUD's authority?

Mr. Daniel K. Edwards: That does, unless the contract provides that it shall be -- that certain things shall be done pursuant to HUD's, from time to time, directive and advice.

Justice Abe Fortas: Does the contract contain any reference to the manual or to circulars or regulations to be issued by --

Mr. Daniel K. Edwards: No, sir.

Justice Abe Fortas: By HUD?

Justice Abe Fortas: No sir, it does not provide that HUD be given the authority to --

Justice Abe Fortas: It says, you note in the same page, the PHA manuals, which are now HUD I guess, contain the requirements which supplement the provisions of the contracts between the local authority and the PHA.

That doesn't change your view, I take it?

Mr. Daniel K. Edwards: I tell you, no, sir, because I think that what they're talking about are those areas where there needs to be some rulemaking and there's, for example, with respect to keeping the records.

Justice Abe Fortas: That didn't so -- I suggest if you look at page 32 (a) subparagraph 4, it seems to be just as broad as it could be with respect to the operation of the projects after initial occupancy.

Mr. Daniel K. Edwards: That's the PHA requirements.

But there, again, you have the -- this is the Housing manual has issued and the contract -- annual contributions contract under the statute is the connecting link between the two.

And, we say that this hasn't been shown to be anything in that contract which is the only -- really the only link between this Housing Authority setup under the state statute and HUD --

Justice Abe Fortas: Well, to pursue my brother Marshall questions, if you assume, contrary to your present argument, if you assume that this circular is binding on the local Housing Authority, there's no question that it would require notice, etcetera, to Mrs. -- to a tenant upon termination of her tenancy.

Mr. Daniel K. Edwards: I don't think it would, sir but necessarily as a matter of law and, for this reason, you analyze the circular itself.

The first paragraph makes an announcement of fact that there's been a lot of evictions around the country and that there's public dissatisfaction about it.

The second paragraph says we -- that is HUD, we believe that it's essential to advice with the tenant before the eviction action is taken.

Then, the third paragraph says that, in addition to advising with the tenant, from this date, the local authority shall keep certain records.

And now, in analyzing what they meant by the circular, it is significant, I think, that HUD does have the authority under the annual contributions contract and under the statute to require the local authority to keep records, and the only directive part, the mandatory part, of this circular related to the keeping of the records says, from time -- from this date forward, you shall keep certain records.

Now, the statute set forth on page 7 (a) of the petitioner's brief set out that the -- that HUD does have authority to require the local authority to keep records.

So, when they wrote this circular, they gave one paragraph of information about what was going on, a second paragraph about what they believe and then a third paragraph which directed them following -- pursuant to their authority to acquire records of these things.

Justice Abe Fortas: So, you think we really have to decide the constitutional question here because the circular -- you think this circular is just a statement of the belief which may or may not be regarded by the local authorities praise-worthy, but certainly is not binding on it.

Mr. Daniel K. Edwards: I think that's correct.

Chief Justice Earl Warren: Mr. Edwards, let me ask you this question.

Assume -- putting the question of retroactivity aside for a moment and taking it as it was when this woman was first ejected from her premises, suppose this Housing Authority which is appointed by the mayor of the city was following the practices of many cities in the South of resisting integration of any kind, and it took the authori -- took the process of throwing out every Negro who came into the apartment house on 15-days of notice without any mention at all of why it was done, and absolutely defeated the purpose of this Act was to -- which is to give all poor people an opportunity to have decent housing in the community in which they live.

Would you say if the commissioners appointed by the mayor and the manager that they appointed took that kind of a position and ejected every Negro who was -- had to be admitted to the apartment house was regular and that the Negro could not -- no Negro could complain in the Courts because no reason was assigned for his ejection?

Mr. Daniel K. Edwards: No, sir.

Certainly would not.

I would say that they would be violating the Constitution of the United States and probably the Constitution of North Carolina if they acted in such a fashion.

I take it --

Chief Justice Earl Warren: Well, then, why shouldn't he be entitled to know if that was the reason for his ejection or if it wasn't?

Mr. Daniel K. Edwards: In Court, I think he would be entitled to inquire into the matter, and that's where --

Justice Byron R. White: In your eviction process?

Mr. Daniel K. Edwards: In the eviction process.

That's why, at one point, I disagree with my friend on the effect of going into Court on -- in an eviction process and proceed.

I think constitutional issues are relevant there and can be raised in any Court in any stage of the proceeding if their constitutional issue, requirements of the constitution, the statute.

Eviction statue couldn't say “You cannot raise a constitutional issue before the Court.”

Justice Byron R. White: Then, the Supremacy Clause would also require consideration of any binding rules of the Federal Authority.

Mr. Daniel K. Edwards: Exactly so, and so you have to consider in this course, it's no -- there's no question about it.

The trial judge before whom the matter is brought, if you raise and say that “They're violating my constitutional rights here,” you'd have to consider.

Chief Justice Earl Warren: Well --

Mr. Daniel K. Edwards: And, in fact -- excuse me sir.

Chief Justice Earl Warren: I understood that you thought that, because that made a contract in connection with this tenancy, that there was no substantial difference between the case where the government is the landlo -- is the owner and the case where the land owner is a private individual.

Mr. Daniel K. Edwards: I'm think --

Chief Justice Earl Warren: That all he'd have to show would be that “my contract with this tenant is to the effect that on 15-days notice, I can terminate the tenancy and I don't have to give any reason at all for it.”

Mr. Daniel K. Edwards: No, sir.

We don't take that position.

We take the position that the constitutional issues would be relevant as they were ruled on here in this very case.

The Court below, when she raised the point “my First Amendment rights are being violated,” the Court didn't say “that is irrelevant.

You will not be heard on that."

The Court heard evidence on that very issue, not ruling it irrelevant but making a decision and making a finding of fact based on competent evidence that her First Amendment rights had not been violated.

Chief Justice Earl Warren: It isn't true then that the Courts of North Carolina held that all they had to show was that the 15-days notice had been given.

Mr. Daniel K. Edwards: No, sir.

They haven't -- they did not hold that in this case because the finding was, when she raised the issue and said that My First Amendment rights had been violated, the Court did not deny her hearing on that but, instead, held a hearing on it and permitted evidence to be introduced, and there was no denial of any request by the petitioner to cross-examine anyone, no denial of the petitioner of her right to introduce any evidence that she saw fit on this or any other issue.

There's nothing in the record that indicates there was any such denial.

Justice Hugo L. Black: Is the difference between you and your adversary that you claim that these rights should be raised in the Court and they claim a right under the constitution, we can say that the constitution requires that they be given -- they give no -- the agent of the Authority give notice to them before they go to Court?

Mr. Daniel K. Edwards: That is our difference, yes, sir.

Justice Hugo L. Black: And the statute required that, as it does in these states, you would of course have to prove that notice had been given or you couldn't evict.

Mr. Daniel K. Edwards: Well, we did give notice.

Justice Hugo L. Black: Well, I don't understand that.

That's what you did.

Mr. Daniel K. Edwards: Yes, sir.

Justice Hugo L. Black: Claiming that you ought to have a right to try it in the Court whether or not you give them notice and, if you didn't, if the contract required it, or the policy of the Act required it, then you think that she would win in the Court because she hadn't been given notice.

Mr. Daniel K. Edwards: That's correct.

Chief Justice Earl Warren: Where do we find that articulated in your brief?

Mr. Daniel K. Edwards: The -- on page 8, we talk about the adequacy of the trial below, sir, in which adequate hearing was provided in the trial below, if that's the point that you were referring to.

Chief Justice Earl Warren: But is there a concession in your brief that that they are entitled to?

Mr. Daniel K. Edwards: Yes, sir.

We say that, during the trial, this matter in the Superior Court, defended not to quarrel with the nature of the scope of the judicial inquiry.

That's the petition, but contended only that due process required the Housing Authority to give the tenant notice of its reason and a hearing before it instituted that.

And, we do go on and we say that we do not contend that we could violate this petition as First Amendment rights in -- as a condition to her remaining in the apartment, that we couldn't place a denial of some constitutional right such as a right to vote or any other rights, free speech, as a condition precedent to her remaining in there.

And, we say --

Justice Byron R. White: You could utilize her by throwing her out, but you haven't done that.

Mr. Daniel K. Edwards: That's correct, and we concede that and we say that that is a -- it was found to be relevant by the Trial Court and passed upon by the Trial Court and when it -- of course, when it was here before, there were some language in the opinion of the Supreme Court that indicated that it might be considering it irrelevant that such an issue be raised, but when it went back for re-hearing, the Court reviewed them out and said, in effect, that the Trial Court had before it whether her First Amendment rights have been violated and so on, and that the Court -- the Trial Court decided issue on competent evidence and it should be sustained.

Justice Abe Fortas: Mr. --

Justice Thurgood Marshall: What's --

Justice Abe Fortas: Mr. Edwards, would you take the same position if this were -- housing project were privately owned and you have exactly the same facts, or let's take the more ex -- dramatic illustration that the Chief Justice put to you.

You have a privately owned Housing Authority and every Negro tenant in it is terminated all at once under the same kind of release.

Would you say that the tenants can challenge the termination on the ground -- on the constitutional grounds and that they wouldn't have a valid constitutional basis for challenge if they could demonstrate that the termination was because they were Negros?

Mr. Daniel K. Edwards: If I were representing the tenants or if I were a judge considering the matter, I would say they would have a valid right under Shelley versus Kraemer or the cases of that sort in which they go into the State Court and ask the Court to enforce something such as a trespass criminal case or an eviction proceeding and say that you -- and would say that the constitution forbids the State Courts from taking this kind of governmental action to implement that kind of denial of constitutions.

Justice Abe Fortas: So that, this is a qualification of the property owner's right in his property, that is, the qualification being that he cannot discriminate on the grounds of race --

Mr. Daniel K. Edwards: Certainly --

Justice Abe Fortas: Stand terminating the tenancy of pers -- of tenants because they are Negros.

Mr. Daniel K. Edwards: It would certainly be arguable and, of course, the --

Justice Abe Fortas: Well, I wouldn't argue anything.

I'm asking for your -- is that the principle upon which your brief is based when you say that the Public Housing Authority of Durham could not terminate -- could not lawfully terminate the tenancy of Mrs. Thorpe if it did for a reason that -- for the reason that she organized this Tenants Union?

You say, then you're assuming that she has a constitutional right and my question to you is whether she has that constitutional right because this is a public agency or would she have that constitutional right even if it were a private agency?

Mr. Daniel K. Edwards: And, the only answer I can give is that some of these -- most of the cases in the past have said that the fact that it is a governmental agency is relevant to that issue, that the restrictions of the constitution were framed to restrain government because it had unusual powers.

Justice Potter Stewart: The only reason that this is a constitutional right is because this is government.

The First Amendment doesn't say “no person shall abridge any other person's right of free speech,” does it?

Mr. Daniel K. Edwards: That's correct and the -- but, I'm saying, too, that in the Shelley versus Kraemer situation where you go into the Courts and just say --

Justice Potter Stewart: Well, that would also be covered.

That would be a statutory right under this Court's decision in Jones against Mayer, would it not?

Mr. Daniel K. Edwards: Right.

Justice Potter Stewart: And under the Supremacy Clause of the Constitution, that would probably --

Justice Byron R. White: Can I ask you if in the -- you say that the eviction hearing -- in the eviction hearing, federal issues may be raised and litigated and disposed of, and you seem to say that it would be required.

I agree with you but, now, let's assume that the -- let's assume that in the eviction hearing the lessee that's being evicted says “I am being evicted because I organize the tenants or I made a speech,” and the Administrative Housing Authority goes on the stand, as he did in this case, in the eviction hearing, I take it, and said “No, that isn't the reason at all.”

And, the lawyer for the tenant says “What reason was there?”

And he says “None of your business.”

Now can he get away with that?

Justice Potter Stewart: No, sir.

Justice Byron R. White: Does he have to answer the question?

Mr. Daniel K. Edwards: I think you'd have to answer the question --

Justice Byron R. White: And, what if he said --

Mr. Daniel K. Edwards: In the cross-examination.

Justice Byron R. White: What if he says “No reason at all I just didn't like you.”?

Mr. Daniel K. Edwards: Then he would've answered the question.

If he had said “No reason at all,” we just --

Justice Byron R. White: But then, how does the eviction hearing come out?

Mr. Daniel K. Edwards: I think that the Housing Authority would succeed that, if there was no reason at all, her con -- there was no constitutional --

Justice Byron R. White: Unless there were some federal rule that says some reasons, there has to be some good reason.

Mr. Daniel K. Edwards: That's correct, and then we're saying that, as the matter now stands and has in the past --

Justice Byron R. White: Well, there aren't any sp -- un -- there aren't any banned reason except constitutional right.

Mr. Daniel K. Edwards: The bad reasonings are the constitutional ones and we can't -- the statute doesn't say there has to be any other kind of reasons and we don't think that the constitution says that you have to have other kind of reasons.

As long as you say that the standard is applicable in this little Housing Authority, which has no governmental powers other than that given to ordinary landlords so that the mandates and restrictions of the constitutions which apply to government generally and were designed to restrict government generally, wouldn't necessarily apply because they have to go into eviction proceedings to get their property back, they have to sign a lease, though I can hear the landlord.

They don't, as agency of government, they've not a single power that an ordinary landlord have that --

Justice Thurgood Marshall: Can I ask you, why is -- why are they appointed by the mayor?

Mr. Daniel K. Edwards: Sir?

Justice Thurgood Marshall: If it's just like a private organization, renting company, why is it appointed by the mayor?

Mr. Daniel K. Edwards: Because it's handling public funds.

Now, when I say --

Justice Thurgood Marshall: Well, when it's handling public funds, it's different.

That's the point, isn't it?

Mr. Daniel K. Edwards: That is one point but, I take it, the --

Justice Thurgood Marshall: It's the point as the constitution, is it not?

Mr. Daniel K. Edwards: I was -- my position was, sir, that some of at least he restrictions of the constitution between this -- between an individual and the government, they were designed to prevent government through its greater thought, its greater power, and so forth, from imposing on the individual.

Therefore, the constitutional prohibitions against government taken certain actions, vice versa, an individual which -- that wouldn't make that -- that reasoning would not give rise to any constitutional prohibitions as against this Housing Authority because it didn't have any power or authority greater than that, but when it comes to the theory, “well, you're administering funds, therefore, a morality founded on constitutional principles needs to be applied to you.”

Example, Mr. Edwards, if a private Housing Authority could say that “None of my tenants shall be permitted to speak in any way that I disliked,” there's nothing wrong with that, is there?

Mr. Daniel K. Edwards: I just -- there's something wrong but, I think, legally, no, there's nothing wrong with it.

Justice Thurgood Marshall: But you could do it, the Durham Housing Authority couldn't make such a rule.

Mr. Daniel K. Edwards: That is correct, I'm sure.

Justice Thurgood Marshall: Well, that's another difference, isn't it?

Mr. Daniel K. Edwards: That's correct, sir.

Justice Thurgood Marshall: And, isn't that what's involved in this case?

Mr. Daniel K. Edwards: That is involved in this case and it was decided in this case because of the prese -- the petitioner presented her contention of what right was being violated, the Court listened on the evidence on it and decided against the petition. That is this case.

Chief Justice Earl Warren: Let me read to you from the findings of the Court that I get from the transcript.

That, by giving the defendant written notice of termination of her lease on the August 12, 1965, the plaintiff effectively terminated the tenancy of the lease of the defendants as of August 31, 1965.

Then, she appealed to the Superior Court, and this is the judgment of the Superior Court, the per curiam judgment.

It says “The defendant, having gone into position as tenant of the plaintiff and having held over without the right to do so after the termination of her tenancy, the plaintiff was entitled to bring summary ejectment proceedings against her to restore the plaintiff to the position of that which belongs to it.

Citing Murrill versus Palmer, 164 North Carolina 50 it is immaterial what may have been the reason for the lessor's unwillingness to continue the relationship with landlord and tenant after the expiration of the term as provided by the lease,” and that's the end of the judgment.

Mr. Daniel K. Edwards: Yes, that's right.

That's the first judgment of the Court in North Carolina.

Chief Justice Earl Warren: No that's on appeal to the Superior Court.

Mr. Daniel K. Edwards: That was the judgment of the Supreme Court in North Carolina, what you just read, per curiam opinion in the first case.

See, this has been to the Court --

Chief Justice Earl Warren: Yes.

Mr. Daniel K. Edwards: Supreme Court of North Carolina twice.

Chief Justice Earl Warren: Yes, that's true.

Mr. Daniel K. Edwards: That's the first time.

Chief Justice Earl Warren: But where do they ever -- where did they ever say that she had a constitutional right to test these other matters?

Mr. Daniel K. Edwards: On their -- when it went back on re-hearing, they considered that matter and the Supreme Court of North Carolina --

Chief Justice Earl Warren: Where do we find that?

Mr. Daniel K. Edwards: On re-hearing -- it's page 39 -- wait a minute.

Chief Justice Earl Warren: Yes?

Mr. Daniel K. Edwards: The -- wherever the opinion is of the Court, I believe it's --

Chief Justice Earl Warren: Yes.

39, you say?

Yes.

Mr. Daniel K. Edwards: Find it.

Chief Justice Earl Warren: Whether --

Mr. Daniel K. Edwards: The Court on re-hearing said this.

“She refused to vacate, charging her lease was being vacated because of her having been elected president of the parent's club.

No evidence was offered as to the purposes of the club, nor that its activities conflicted with interest to their authority.

The manager of the authority stated unequivocally, under oath, that the termination of the lease had no connection whatever with the tenant's activities and get back to the parents club, Judge Picket so found.

That was the Trial Court.

Chief Justice Earl Warren: Now, where did Judge Picket so find?

Mr. Daniel K. Edwards: In the Superior Court judgment which -- in this appendix here, that was upon --

Chief Justice Earl Warren: Is that language that I just read?

Mr. Daniel K. Edwards: No, sir.

Chief Justice Earl Warren: Is that page 28?

Mr. Daniel K. Edwards: The language that you just read was one of the findings it is true.

Justice Byron R. White: On page 21?

Mr. Daniel K. Edwards: 21, finding number 10 says this is the finding of the Court below that the plaintiff, Housing Authority to the City of Durham, acting through C.S. Oldham, its Manager and Executive Director, gave notice to the defendant to vacate said premises, not because she had engaged in efforts to organize the tenants of McDougald Terrace nor because she was elected president of a group organizing McDougald Terrace on August 10, 1965 that these were not the reason the said notice was given and eviction undertaken.

That was the finding of the Court.

Chief Justice Earl Warren: That's the finding, but the judgment says that's immaterial.

Mr. Daniel K. Edwards: The --

Chief Justice Earl Warren: It makes no difference.

It makes no difference if the term has expired.

She's there illegally.

It is immaterial, and I'm reading from page 28, it is immaterial what may have been the reason for the lessor's unwillingness to continue the relationship of landlord and tenant after the expiration of the term that's provided in the lease.

Mr. Daniel K. Edwards: That, of course, if Your Honor please, is not the opinion or not the judgment in the Trial Court.

That is the per curiam opinion of the Supreme Court of North Carolina as it --

Chief Justice Earl Warren: Well --

Mr. Daniel K. Edwards: As it appeared when the case was first heard in that Supreme Court, but what I'm saying is that when it went back to the Supreme Court of North Carolina, they added --

Chief Justice Earl Warren: Do you mean on our remand?

Mr. Daniel K. Edwards: On your remand, yes, sir.

They said a different -- or not necessarily a different thing, but they amplified what their meaning was.

I -- when we're here before, my contention was that this language in this per curiam decision, not only that it was immaterial, under the showing in the evidence that was presented there, what their reason might have been because there was no showing of any constitutional violation by the petitioner.

For that reason, it became immaterial but there was no holding even then that she could not have the opportunity to show that any constitutional right was violated.

Then, when it went back to the Supreme Court of Carolina on re-hearing, the Court went further into that particular point of the finding -- on the finding that her First Amendment rights had not been violated by the Trial Court and then said that since they were based on competent evidence, those findings by the trial judge which appear in finding number 10 should be sustained.

Justice John M. Harlan: Could I ask you a question?

Chief Justice Earl Warren: Well, could I finish this just once?

What is the finding in Murrill versus Palmer, 164 North Carolina, which is cited by the Supreme Court for its statement that I just read about the immateriality for the reason for the ejection?

Chief Justice Earl Warren: That was just ordinary landlord-tenant situation in which notice was --

Chief Justice Earl Warren: And what did they hold there?

Mr. Daniel K. Edwards: That the -- that no constitutional issue was raised in that case.

They just gave them notice and the -- it was a normal eviction proceeding.

No governmental agency was involved in that case.

Chief Justice Earl Warren: And on the authority of that case, they said here that it is immaterial what the reason was.

Mr. Daniel K. Edwards: Well, I don't think that when they say it's immaterial in that first per curiam decision, they are really staking out what the Court's view of the matter was.

This was not the Trial Court.

It'd be the Supreme Court of North Carolina per curiam decision in one summons says that, “Under the findings that have come to us.”

Chief Justice Earl Warren: No, it doesn't say that.

Mr. Daniel K. Edwards: Well, I'm saying just what it means.

Chief Justice Earl Warren: Your -- well, I know That's different.

Mr. Daniel K. Edwards: All it says is that it's immaterial, but I think that you have to construe what they're talking about in terms of the case that was then before, which was a case that had come before them with a finding of fact by the trial judge that First Amendment rights had not been violated and that there'd been no request by the petitioner for further exploration by the Trial Court into any reasons and there'd been no objection or exception taken to any action by the Trial Court, vice versa, any further exploration or what the reasons might have been.

And, in that context, I take it that, on appeal to the Supreme Court of North Carolina, it really was immaterial what the reasons were.

Chief Justice Earl Warren: I thought that the petitioners did take exception to those things?

There relate it here on page --

Mr. Daniel K. Edwards: They didn't take exceptions --

Chief Justice Earl Warren: Exception 1 on page 21 and exception 2 on page 22, and 3 and 4 and 5, I think they --

Mr. Daniel K. Edwards: The exceptions are on page 25, I think, of the appendix, grouping of exceptions and assignments of error.

And, what I'm saying is that there were no exceptions taken to the scope of the Trial Court's inquiry and the reasons because there was no request made upon the Trial Court to broaden the scope of its inquiry.

Therefore, there would -- could be no exception taken to the Trial Court just confining itself to the evidence presented by the petitioner.

And, her contentions, she said they were in the trial.

There was no request to the judge and the trial of the action say “Make them come in and give us additional reasons.”

They didn't ask that, and the fact that he didn't do it on his own motion was not accepted, too, either there.

When it went from the Trial Court to the Supreme Court, they didn't take exceptions to the failure of the Trial Court on its own motion to make further inquiry and broaden the scope of its inquiry and the reasons for the eviction.

Justice Byron R. White: But if the North Carolina Court did have that attitude that it's immaterial, I suppose you would concede they may be in error.

Mr. Daniel K. Edwards: I think this language at least --

Justice Byron R. White: Or you would say that --

Mr. Daniel K. Edwards: Is an error.

If that language is literal --

Justice Byron R. White: Or at least if the state refuses to make some form available to enforce constitutional rights, there's bound to be some form somewhere then.

Mr. Daniel K. Edwards: That is correct, but I think that what you're confronted with here is, you have the same thing, as far as evidence and findings are concerned, is that before the Supreme Court of Carolina and you say that, on the basis of those findings and on that evidence, she had a fair trial in the Trial Court there.

Justice Byron R. White: Well, what if you -- what if the Court here didn't agree with you that the circular was maybe we call it retroactive or not, at least here, here came a circular from HUD before this case was finally disposed of.

It was on appeal here or somewhere when the circular came out.

Now, why shouldn't the circular apply the law announced by that circular if it is the law and binding?

Let's just assume that it is.

Why shouldn't that law determine the appeal?

Mr. Daniel K. Edwards: If It's --

Justice Byron R. White: Or why shouldn't the appeal be determined in Court?

Mr. Daniel K. Edwards: If it's in terms --

Justice Byron R. White: What would be the normal rule, wouldn't it?

Mr. Daniel K. Edwards: It would be within the context of the generally applicable rules.

I think this Court has applied to other situations in which you have a procedural rule that has entered into the picture between the trial and the final determination you apply whatever.

Justice Byron R. White: Do you -- if the Court thought this circular was to be applied to pending cases, then what?

Mr. Daniel K. Edwards: We just lost the lawsuit, I gather.

Justice Byron R. White: But do you think it's binding?

Mr. Daniel K. Edwards: I don't think it's binding.

I think it's --

Justice Byron R. White: Do we have to determine that here?

Mr. Daniel K. Edwards: I think you have here a contractual situation.

You have a state agency to be sure, but it's not a federal agency.

The local Housing Authority is created under a state statute, and HUD doesn't have a vestige of authority over it granted by any statute except by virtue of entering into an annual contributions contract with it and the sign on the dotted line, HUD and the local Authority.

Justice Byron R. White: Well, I take it then, you must get down to this really because you seem to concede the general rule would be that if this is a binding rule of some kind, it really ought to apply to pending cases.

Mr. Daniel K. Edwards: I think so.

Justice Byron R. White: And so, your real last resort is whether it's really binding on it, on a local agency, whether this kind of circular really determines -- is supposed to determine your conduct.

Mr. Daniel K. Edwards: That's correct.

Justice Byron R. White: And you suggest that you can -- may depart from it now, although you're complying with it now, you can depart from it without violating any kind of Federal Law.

Mr. Daniel K. Edwards: I think so.

I think that because you'd have to be very careful about reviewing the content of the annual contributions contract, which we have done and can find nothing in it that gives HUD the prerogative under the terms of that contract to say what kind of lease we're going to have, whether it should be for six months, one month, one year, or anything like that and it doesn't give them any prerogative to say that you must have an administrative hearing in advance of --

Justice Hugo L. Black: Isn't that the real issue between you and Mr. Nabris?

Mr. Daniel K. Edwards: That's correct.

It's whether the constitution of this country requires that there'd be an administrative hearing or administrative giving of reasons before the eviction proceedings --

Justice Hugo L. Black: Before you go to Court.

Mr. Daniel K. Edwards: Before we go to Court.

Justice John M. Harlan: Mr. could I follow up one question?

Assuming that your view is deceptive on that problem, what -- I'm not quite sure that I understand your view as to what would be your position if, in an administrative -- in any summary eviction proceedings that I cannot be evicted because I have received no reasons for my eviction period, what would happen on that part?

Mr. Daniel K. Edwards: I would say that would not be a sufficient defense on the --

Justice John M. Harlan: Not a sufficient defense?

Mr. Daniel K. Edwards: That's right.

I cannot be evicted because I received no reason.

Justice John M. Harlan: Right, and then, suppose that she said “I want to prove my answer to the questions of the majority that I was evicted because I was a Negro.”

Mr. Daniel K. Edwards: I think she would've been entitled to do so.

Justice John M. Harlan: But she has to make that assertion as a matter of speculation or suspicion, however we feel about her, knew well about her, she cannot explore as to what the reasons have been?

Mr. Daniel K. Edwards: I think she could.

I think she could insist upon her right to examine the agen -- the executive director of the authority.

If he got up on the stand and ask “What reason did you have?”

He might say “I had no reason at all, I just wanted a vacant apartment there,” but we say, constitutionally, he would be entitled -- that would be a constitutionally acceptable answer and said “I had no reason at all, I just wanted a vacant apartment.”

Justice John M. Harlan: And, as Justice White suggested, the language in here must have been that North Carolina was a little overbroad.

Mr. Daniel K. Edwards: That was the first -- the first opinion was overbroad and I concede that it was, and I don't think that the language accurately portrayed what the Court was thinking and what it was holding.

I know it didn't portray what it was actually holding on the basis of the record before it.

And then, when it went back on re-hearing, I think it clarified that point.

Justice John M. Harlan: So, she would get a chance.

She would have a right to get the reasons for the eviction?

Mr. Daniel K. Edwards: Yes.

Justice John M. Harlan: A case that much?

Mr. Daniel K. Edwards: Yes, sir.

Justice Abe Fortas: Mr. Ed --

Justice Potter Stewart: No, I didn't understand that.

Justice Byron R. White: Where?

Justice Potter Stewart: You --

Justice Byron R. White: Where?

In the Courts?

Mr. Daniel K. Edwards: In the Courts.

Justice Hugo L. Black: That's right.

Justice John M. Harlan: Well, what if --

Justice Hugo L. Black: That is the issue between you.

Justice William O. Douglas: Well, that has been denied up to now.

Justice Abe Fortas: Well, that's right.

Mr. Daniel K. Edwards: She never -- she has never asked in the Trial Court, if Your Honor please, what the reasons were.

Justice William O. Douglas: Now, you're being technical.

In North Carolina she's asked.

Mr. Daniel K. Edwards: No, sir.

She did not ask in the trial of this action.

Justice William O. Douglas: She asked in the Supreme Court of North Carolina.

Mr. Daniel K. Edwards: They should -- There was no evidence, of course, in the Supreme Court, but when an opportunity during the trial --

Justice William O. Douglas: The tenant -- the point is a point to be decided.

Mr. Daniel K. Edwards: But when the action was tried, when the matter was before the Trial Court on finding the issues, the Trial Court found on her and she contended that her First Amendment right had been violated.

Evidence was introduced on that point.

The Court found against her.

There was no additional question asked about what the reasons were in that trial of that action.

Justice William J. Brennan: On the discover proceedings in these procedures?

Mr. Daniel K. Edwards: There --

Justice William J. Brennan: This procedure and let's see, this is the kind of case that goes --

Mr. Daniel K. Edwards: Discover procee --

Justice William J. Brennan: The summary eviction proceeding is in what Court?

Mr. Daniel K. Edwards: Superior Court.

Justice William J. Brennan: And, in that Court, are there discovery proceedings?

Mr. Daniel K. Edwards: There are indeed.

Justice William J. Brennan: And when she was served, it was possible to have asked the question what was the reason, was there any reason, and so forth?

Mr. Daniel K. Edwards: She could've had pre-trial discovery by interrogatories, written interrogatories or by pre-trial examinations of --

Justice Byron R. White: Doesn't this start before the Justice of the Peace really?

Mr. Daniel K. Edwards: Sorry?

Justice Byron R. White: This starts really before the Justice of the Peace.

Mr. Daniel K. Edwards: It starts before the Justice of the Peace.

Justice Byron R. White: And then it's --

Mr. Daniel K. Edwards: It's de novo.

Justice Byron R. White: And then it's de novo in the Superior Court.

Mr. Daniel K. Edwards: Completely de novo.

It's just like starting all over again.

She filed in lieu of pleadings and affidavits setting out what her contentions were about why she was being --

Justice William J. Brennan: Is there a pre-trial proceeding, as well as pre-trial discovery available under your thrust?

Mr. Daniel K. Edwards: Pre-trial discovery, yes.

But, in an eviction proceeding, the normal course is before a justice and then it goes to --

Justice William J. Brennan: So you don't really get to discovery proceedings, I guess.

Mr. Daniel K. Edwards: You can't.

Justice William J. Brennan: You get to the Superior Court?

Mr. Daniel K. Edwards: Until she appeals from the justice --

Justice William J. Brennan: Yes.

Mr. Daniel K. Edwards: And then she gets into it, but it's de novo, completely new in the Superior Court and, before you get to that stage, she does have the discovery proceedings available.

Justice Byron R. White: Well I take it that the -- somewhere, I remember reading in here, that the -- one of the officials of the Housing Authority actually appears in Court before the Justice of the Peace.

Mr. Daniel K. Edwards: Right.

Justice Byron R. White: And then there was a stipulation about what his testimony would be --

Mr. Daniel K. Edwards: That's correct.

Justice Byron R. White: In the Superior Court.

Mr. Daniel K. Edwards: That's right.

Justice Byron R. White: And, although they didn't need to sign that stipulation, they could've had him there.

Mr. Daniel K. Edwards: They could've had him there and they could've cross-examined him and ask him any number of questions, at least as far as this record is concerned they could've, because there was no question that they asked that was denied by the Court, there's no ruling of irrelevancy anywhere along the line by the Trial Court, and they made no exception.

They didn't ask the Trial Court, “now, will you expand this hearing in this Trial Court to require into other reasons that might have existed?”

They didn't ask that.

Chief Justice Earl Warren: The Court said it was immaterial, didn't it?

Mr. Daniel K. Edwards: No, sir.

The Trial Court did not.

It was never said in the Trial Court that it was immaterial at any stage because the question was never asked in the Trial Court, never.

It was only the language, that Your Honor was referring to, appears for the first time in the per curiam deci -- opinion of the Supreme Court of North Carolina.

That's the only place that that sentence has ever appeared in this whole lawsuit, from the beginning to the end.

That's the one place it's appeared.

Justice William J. Brennan: Well, the sentence at least has created a confusion.

Mr. Daniel K. Edwards: It has created a confusion, yes, sir.

Chief Justice Earl Warren: We'll recess now.