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<<previous | index | next>> XI. Limited Right to RedressFederal law gives applicants for public housing the “opportunity to dispute the accuracy and relevance of” any criminal record a PHA relies on to deny the applicant eligibility for housing assistance.275 Most, but not all, PHAs allow applicants to do this through administrative proceedings that contain most of the safeguards essential to a fair hearing. Hearings are extremely important because they are typically the only time PHAs consider information beyond the criminal record itself, such as evidence of rehabilitation. Indeed, in many places, there is a strong likelihood that the initial denial will be overturned after officials have considered such evidence, a fact which underscores the arbitrariness of the initial denial. Nevertheless, many applicants are deterred from challenging their rejections.276 And those who are barred under mandatory federal exclusionary statutes can only dispute the accuracy of the records used to deny them; they do not have a chance to argue they are rehabilitated.277 Lack of RepresentationIf you have representation, you have a good chance of winning. If you don’t, forget it.278 Applicants challenging public housing denials are entitled to bring someone to assist them, whether a lawyer or non-legal advocate such as a case manager, to any meeting or administrative proceeding. Many housing authorities and legal service attorneys we spoke with acknowledged that when an applicant appears at a hearing with a representative, they are often able to overcome a denial of eligibility. “If you are there with a case manager or advocate,” said one housing official in Portland, “you will usually get into housing.”279 Unfortunately, such advocates are not always available. “If a case manager goes to an appeal hearing with them,” one service provider with a non-profit group in Portland told Human Rights Watch, “they are more successful. But we don’t have that many case managers because of budget cuts, so people do fall through the cracks.”280 Applicants accompanied by a lawyer stand the best chances of prevailing.281 An attorney in Baltimore told Human Rights Watch: “We never lost a hearing;”282 a paralegal in Austin agreed: “I can’t think of a case that we’ve lost.”283 However, those who appear, without an attorney, even with evidence of rehabilitation, do not fare as well. It is extremely difficult for public housing applicants to secure legal representation. Almost by definition, applicants for housing assistance lack the funds to hire private attorneys, and neither federal nor state laws give them a right to legal representation free of charge. Moreover, many legal service organizations that provide free legal services to the poor do not prioritize admissions cases. Those that do are, like all legal services organizations, so overwhelmed by the demand for their services that applicants may not be able to receive assistance—and some applicants we spoke to indicated they did not even know how to reach a legal services attorney. Outreach to housing applicants is difficult even when an organization wants to reach them because of the transient nature of their lives and the fact that many are homeless. Kenneth Lay, the managing attorney at Legal Services of Metro Birmingham said, “We don’t see many admissions cases. I don’t think they know we can help with that. We’ve tried through community outreach to get to people but we’re only reaching current tenants. I don’t know how we could reach them, other than requiring the housing authority to notify them.”284 And as one lawyer told us, one of the reasons legal service organizations may not prioritize cases where applicants are denied because of criminal records is because they get no “political mileage by trying to help this population”: We don’t deal directly with this issue . . . but if you ask me, its because of the type of population this is . . . . A lot of the work is driven by the funding that we’re able to get. There hasn’t been much of an outcry, they’re at the bottom of the totem pole. . . . From my experience, it’s much easier to get funding when you’re talking about families or children. We just can’t get anyone on board. We don’t have the funding to tackle these kinds of issues.285 In the rural areas we visited, legal representation was even more scarce. Housing officials in two rural areas of South Carolina told us that they had never seen an applicant represented by an attorney, and the legal services office closest to Greene County in Alabama had no recollection of representing anyone in an applications case with the local PHA in recent years.286 Legal service organizations and public interest attorneys that reach out specifically to find applicants denied housing because of criminal records, as well as agencies that focus on public housing issues, report having more than just occasional experience with helping rejected applicants. The Homeless Persons Representation Project (HPRP) in Baltimore has focused a great deal of attention on applicant denials, mainly because of the office’s location and individual attorney interest in such cases. Carolyn Johnson, a staff attorney with the project explained why: Because we are in the same building [as the housing authority] people would just find their way to our office. Housing authority staff would say: “Go down to the second floor [the offices of the HPRP] if you’re that angry.” We started seeing a lot of people getting denied in 1997 when I was a law student and so we [the law students] started doing the hearings.287 Texas RioGrande Legal Aid’s (TRLA) Austin office is one of the few offices that has the luxury of specializing and has taken a focused interest in challenging public housing denials. Most attorneys are not taking public housing admissions cases “because they don’t have the experience,”288 one TRLA attorney told us. “They don’t realize they’re winnable cases.”289 Many legal service agencies restrict the kinds of admissions cases they will take to only those denied in violation of a PHA’s own policy, or those who can clearly show significant rehabilitation. “Most are slam dunk,” said one paralegal in Austin, but others are less clear, and she said that they “absolutely would not” take a case of someone with a recent drug conviction or a case pending, “because we know the policy!”290 Attorneys at TRLA said that they knew what a hearing officer needs to see to approve an application, but that they themselves exercise “discretion” in how they take cases. “It really depends on the facts,” said an attorney in the Austin office. “If a client comes in and says, ‘I’m homeless and I have four kids, but these are the reasons you should take my case,’ then of course we’ll consider it.”291 Those with less sympathetic cases, or single adults without children, may have a more difficult time securing representation even in those areas where the local legal services office takes admissions cases. Some legal service agencies are able to press local housing authorities to exercise discretion in considering an applicant’s rehabilitation or re-open cases where the PHA rejected an unrepresented applicant. But few are able to address PHA policies or practices that affect entire classes of clients. Because federal legislation prevents legal service agencies that receive federal funding from the Legal Services Corporation (LSC) from engaging in class action litigation,292 the most an LSC-funded legal service provider can do is bring challenges on behalf of individual clients and conduct outreach to applicants who may be affected by the same practices. Lack of Information from PHAsMany applicants who were denied because of their criminal records told Human Rights Watch that they either received no information from the PHA telling them that they could challenge their denials, or they were actively misled by PHA staff. Some applicants simply do not have the wherewithal to understand the process on their own. “[The denial letter] just said that I could appeal it, but I didn’t know how,” one young mother in rural Pennsylvania told us. She called her local legal services office after she, her husband, and her infant son had been denied because of her husband’s felony theft record from 2000, and she was told that they could not help her file an appeal.293 Living apart from her husband now and struggling to pay the rent on her own, she said: I don’t really consider us much of a family. Whenever we can see each other, we try to see each other. Neither of us drive and he lives about 45 minutes away. It is stressful . . . because I feel like I’m taking care of a kid by myself. I am young . . . and I don’t have anyone to help me. I am hoping that if either myself or my husband gets a job, we can get our own apartment.294 With no work history, no GED, and a husband now living on the streets, the chances of reuniting her family, however, seem slim. Federal law requires that PHAs notify applicants why they were rejected, and provide them with a copy of the record upon which the denial was based.295 Yet PHAs do not always comply with these requirements. In many places, applicants had little to no idea why they had been denied. Many PHAs provide applicants with form letters notifying them that they have been denied, but fail to specify the reasons why. “If the person has a criminal history,” a housing administrator in Florida told Human Rights Watch, “and falls within the [PHA’s] criteria for denial, they usually get a standard rejection letter. It states that the person has been rejected because they have a criminal history. It doesn’t say what type of crime was the reason for the rejection.”296 Letters to Baltimore applicants, for example, contain this standard reason for denial: “Engagement in drug-related or violent crime and/or other criminal activity which may adversely affect the health, safety, or right to peaceful enjoyment of other residents.”297 Many housing providers recognized that the process available to challenge denials itself actually deters applicants from appealing. Others, in an effort to ameliorate the effects of blanket policies and, after seeing that many applicants who were denied failed to request appeals, have revised their letters to make them more “friendly.”298 At least one PHA recently revised its letters of rejection to explain to applicants why they had been denied. “How can you mount a defense without knowing the crimes you’re being rejected for?” asked a hearing officer.299 Inadequate Time to AppealUnder PHA policies, an applicant who has been rejected must appeal within a set period of time, typically ten days from the date of the denial, or their application will be terminated. For many applicants, ten days is an impossible deadline to meet. Every advocate for the homeless that we spoke to pointed to the problem that homeless applicants have receiving notices from PHAs. Without a permanent, fixed address, homeless people cannot receive mail regularly.300 Many PHAs allow an applicant to appeal a denial after the deadline has passed if they can show “good cause” for the delay.301 But PHAs do not consider problems with receiving mail “good cause.” They insist it is up to the applicants to make sure the PHAs have a way to be in contact with them. While it is certainly reasonable for a housing authority to require a way of contacting an applicant, there is no need for deadlines that prejudice the homeless. A somewhat longer appeal period would not unduly disrupt PHA operations. Indeed some housing officials have recognized the unique difficulties of the homeless in the appeal process.302 Administrators at Garden Terrace, a HUD-funded SRO in Austin, Texas, adopted a policy allowing applicants to challenge denials at any time. When asked whether this was an administrative burden for the staff, they said it was not. Program administrators simply keep the application on file and wait for applicants to bring in evidence of rehabilitation. “The faster you bring it in,” the Assistant Manager said, “the faster you’ll get housing.”303 Giving UpPeople who continually face obstacles and rejections in many facets of their lives because of their criminal histories may simply give up and choose not to pursue an appeal. “They get to the part where it says you can be denied for housing for a felony conviction, drug offense …they shut down at that point,” said Anthony Barber, a reentry advocate in Texas. “There’s no reason to keep reading on for appeals. . . . You’ve been told for . . . years that if you’ve been convicted of a felony, you’ve lost your rights. That’s branded into their subconscious, that they haven’t the rights.”304 “It’s going to come back and slap me in the face,” one applicant who had been denied told Human Rights Watch, “so why should I go through the bother—it’s a waste of time.”305 Sheila Fauntleroy, a social worker in Pittsburgh, told Human Rights Watch about a twenty-eight-year-old African American woman with six children who was denied housing. After being released from prison on several drug possession charges, she regained custody of her children and applied for assistance. Denied by both the city and the county PHAs, she chose not to appeal. Instead, she works two jobs and pays $500 a month in rent for a three bedroom apartment on a $6-7 per hour wage as a nurse’s aid. “She didn’t even want to fight,” Fauntleroy explained, “she’s fighting a lot of other issues as it is. It would just be another one. Her main objective was to find housing. They told her straight up that if they have a felony offense, they aren’t eligible for anything[.]” Without medical coverage for herself, and juggling both of her jobs and her responsibilities as a single parent, her ability to maintain the apartment on her own was precarious at best. “Regardless of what she had done,” Fauntleroy said, “her children shouldn’t have been penalized. . . . She’s trying to do the best she can.”306
Some applicants give up on more than just their housing applications when they are denied. Almost without exception, people with criminal records who were turned away from public housing described the depression that followed each rejection they received—from housing providers, welfare agencies, and potential employers. The despair that some begin to feel after repeated rejections is sometimes too much for them to bear. C.L., an ex-offender who was living on the streets in Salt Lake City, Utah told Human Rights Watch: Either I am going to end up back in prison, or I’m going to end up dead, or killing myself—I’ve thought about suicide several times—or I end up corroding away living on the streets, and going back to drugs or going back to crime and doing whatever I have to do to have any kind of satisfaction I guess on a daily basis.308
An Ineffective ProcessThe administrative appeal process at many PHAs consists of an informal hearing before a housing official serving as an Administrative Law Judge (ALJ). If the applicant is not represented by a lawyer or other advocate, the hearing can be pro forma, with the ALJ refusing to consider any evidence of mitigation or rehabilitation and simply rubberstamping the initial decision. Failure to Consider Mitigation or RehabilitationFederal law suggests that beyond taking into consideration the nature, severity, and remoteness of an applicant’s past offenses, PHAs may also consider evidence of rehabilitation that would indicate the applicant no longer poses a threat. As already noted, most PHAs do not consider such evidence except, if at all, when an applicant appeals an initial finding of ineligibility. Most housing officials told Human Rights Watch that they would allow someone with a criminal history into housing, if the applicant could show documented evidence of rehabilitation. Housing officials expressed universal concern that without adequate documentation, they could be held liable for future illegal acts of tenants with criminal records. A policy analyst for a national public housing group explained, “PHAs don’t want to stand in the middle of that field [even though] the chance [of being sued] is like getting struck by lightning.”310 In fact, Human Rights Watch identified only one reported court case dealing with whether a PHA could be held liable for the actions of a third party. In this case, a family member sought damages from the Birmingham Housing Authority after a tenant was shot and killed during a gunfight between drug dealers on housing authority premises. Alabama’s Supreme Court held that the PHA was not liable, even though it knew there was a problem with crime and that drug sales were occurring on the premises.311 Unfortunately, because consideration of rehabilitation is not mandatory under federal law or HUD regulations, some PHAs feel free to ignore, or pay only nominal attention to, an applicant’s efforts to rehabilitate.312 Attorneys at Neighborhood Legal Services (NLS) in Pittsburgh, Pennsylvania told Human Rights Watch about a mother of two who was denied because of several convictions for minor offenses. Although she ultimately prevailed on appeal in state court, the case illustrates the refusal of PHAs to exercise the discretion they have. The mother had one domestic violence charge, which resulted from an incident between her and her husband. They were both arrested, and he convinced her to plead guilty so that she could return home to care for their children. Her husband pled not guilty, and the charges were ultimately dismissed against him. She appealed her denial with the assistance of NLS attorneys. “We had excellent evidence, but we lost at the hearing,” Amy Carpenter explained, The hearing officer didn’t think he had discretion. We had a substance abuse counselor come in and testify that this woman had become a poster child. She was quite impressive in the changes she’d made and was continuing in her recovery. She was even employed by a Section 8 landlord! He came in and testified, “She handles my books, she’d be a good member of the community, I rely on her,” etc. etc. We had two or three witnesses, it was very impressive. . . . The hearing officer was sympathetic, but his supervisor denied it and we lost. We filed a statutory appeal and the decision was reversed. I thought we were going to win at the grievance. He [the hearing officer] was almost apologetic about it.313 The same group of attorneys described another recent case of an African American woman who was over sixty and was denied because she pled guilty to three different offenses in 2000. One attorney told Human Rights Watch: She’s been in programs to deal with alcoholism and depression. She’s in rehab, doing everything she’s supposed to do. There had been no further arrests. We had a recent appeal, and the housing authority wouldn’t even consider the case. She was a threat to nobody, she’d done so much work. A caseworker from Western Psych [Western Psychiatric Institute and Clinic at the University of Pittsburgh Medical Center] testified. They [housing officials] said she wasn’t eligible until 2008. We filed an appeal in the Court of Common Pleas, and the judge who heard the case knew the housing authority had the discretion to deny her, and he said, “Can’t you make some kind of a deal?” The attorney for the housing authority said absolutely not. They said they don’t have to.314 Paralegals in a small town in Pennsylvania told Human Rights Watch about a client who had been denied based on a series of arrests six years prior to his application for housing.315 Pittsburgh housing officials disregarded the fact that the forty-eight year-old man had never once been prosecuted for a criminal offense. The PHA relied solely on the applicant’s remote arrest record and refused to conduct any semblance of an individualized evaluation of the applicant’s character or the circumstances surrounding his arrests.316 After an attorney intervened on the applicant’s behalf, threatening to contact HUD and file suit against the PHA, the housing authority reversed its initial decision and issued the applicant a housing voucher. By that time, however, the applicant had secured housing elsewhere. “They got what they wanted,” the paralegal working on the case said, “They didn’t want him in there.”317 As discussed above, where an applicant’s record suggests prior drug use, PHAs may require evidence of rehabilitation. Absent such evidence, or depending on its nature, PHAs in effect presume that the applicant is a “current user.” Because there is no standard definition of what constitutes “current” drug use, PHAs require applicants to produce evidence that they have been enrolled in treatment for at least six months, and often much longer. Some PHAs require applicants to provide otherwise confidential information from treatment providers such as toxicology reports and progress notes. PHAs frequently deny admission to drug users who are currently in treatment, those who have relapsed, and those who have not been drug-free for long enough periods of time. Human Rights Watch reviewed written decisions issued by ALJs and found cases where it was apparent that ALJs did not give sufficient weight to substance abuse rehabilitation documentation. For example, a hearing officer in New York affirmed the denial of an applicant whose last criminal conviction was eight years prior to her application for housing. In her defense, the applicant brought her enrollment in substance abuse treatment to the attention of the housing authority. At her hearing, she produced four letters documenting her rehabilitation, including proof that she had been receiving methadone maintenance treatment for six months at the time of the hearing. The ALJ, however, was not convinced that she had been sufficiently rehabilitated—assuming that because she was still in the methadone program, she had not completed treatment. (“Methadone maintenance,” as its name indicates, is a maintenance program, and many people are maintained on the medication for years, some for the rest of their lives. Hence, patients do not graduate from the program like other forms of substance abuse treatment). As a result, the ALJ ignored all of evidence of rehabilitation and reasoned incorrectly that: Ms. [R] has acknowledged that she has a drug addiction problem yet she has not been able to successfully complete a rehabilitation program. . . . Ms. [R] did not present any documentation or evidence to show how her life has changed or improved since the time of the felony and misdemeanor charges listed in the Basis of Ineligibility.318 No Opportunity to Challenge a DenialPerhaps because federal law does not grant an applicant the right to challenge a denial, but only to challenge the veracity and relevance of records upon which denials are based, some PHAs deny hearing rights altogether. A public official with the Housing Authority of the City of Austin (HACA) confirmed to Human Rights Watch that tenants who had been evicted from public housing under “one strike” policies and then applied for public housing before three years had passed would be denied, and they would not be entitled to an informal hearing to challenge that denial.319 Indeed, lawyers with TRLA in Austin recounted to Human Rights Watch the case of two young women who had been minors in families that had been evicted from public housing. When they later applied for housing for themselves and their children, HACA officials said they would not even consider the applications, nor would they allow a challenge to that decision. The applications were reinstated only because TLRA lawyers threatened to sue, and ultimately, as HACA’s director told Human Rights Watch, “Fuchs [TRLA’s director] got involved.”320 Both women were eventually found eligible for housing. Access to the CourtsApplicants who are denied admission to public housing following an informal hearing may appeal such determinations to the courts. Notices of a denial sent to applicants, however, generally do not inform them either of their right to appeal to a court or that they should contact an attorney to assist them in filing such an appeal.321 Needless to say, it is difficult to bring an appeal pro se, i.e., without a lawyer, and as discussed above, housing applicants do not have ready access to attorneys. Although no statistics are available, we were told by PHA officials and housing advocates that very few applicants file court appeals of housing denials, and indeed, a Human Rights Watch search identified fewer than ten published decisions nationwide on such cases since 1996. Furthermore, the standard is very high for judicial review of administrative decisions. In order to reverse a finding of ineligibility, a court must find a decision arbitrary or capricious, and generally, if an administrative law judge provides any reason whatsoever for a denial of eligibility, especially where the ALJ weighs the PHA justification against the applicant’s evidence, a court will refuse to substitute its own judgment and reverse the denial.322 No Record on AppealApplicants are further disadvantaged because, almost without exception, hearings are not tape recordedor transcribed.323 As a result, there is no record on which to base an appeal. Without an accurate and complete record, a court may not even be able to determine the factors on which the hearing judge based the decision.324 This also hampers the ability of attorneys to evaluate the strength of applicants’ cases. In addition, many PHAs utilize one form letter for initial denials and another for their hearing decisions. “I don’t know what they based their decisions on,” one attorney told Human Rights Watch, “because people would just receive form letters, you won or you lost.”325 [275] 42 U.S.C. § 1437d(q)(2). [276] We asked each PHA official we met with for statistics on how many of those denied due to criminal records actually appeal and how many prevail after administrative hearings. None of the seventeen PHAs that we visited kept such records. The NYCHA did provide Human Rights Watch with the number of people who, after the PHA had found them ineligible for any reason, had requested a hearing. While Human Rights Watch found that the notices NYCHA provides to those it deems ineligible provide far better information about how to challenge a denial than those provided by most all other PHAs, information provided by NYCHA suggests that less than 50 percent of all those denied eligibility for any reason requested hearings. Letter to Human Rights Watch from Sherry Shuh, deputy general manager for policy, planning and management analysis, New York City Housing Authority, June 17, 2004, and Human Rights Watch e-mail correspondence with Jill Berry, executive assistant to the deputy general manager for policy, planning and management analysis, New York City Housing Authority, June 28, 2004. One PHA suggested that a significant “drop off” occurs in the application process as roughly 60 percent request hearings, 60 percent of those who request hearings show up at those hearings, and rejections are upheld between 30 and 40 percent of the time. Human Rights Watch interview with Housing Authority of the City of Austin staff, Austin, Texas, February 12, 2004. Housing officials told us that significant additional staff resources would be required if every applicant who was denied appealed. [277] See Archdiocesan Housing Authority v. Demmings, 2001 Wash. App. LEXIS 2276 (Wa. Ct. App 2001) and discussion in footnote 202. [278] Interview with Virginia Rojo Holland, February 11, 2004. [279] Human Rights Watch interview with Rachel Duke, social services coordinator, Housing Authority of Portland, Portland, Oregon, June 24, 2003. [280] Human Rights Watch interview with Renata Wilson, interim employment/housing supervisor, Portland Impact, Portland, Oregon, May 26, 2003. [281] Most of the denial notices sent to applicants state that they can bring a representative along with them to an informal hearing, but Human Rights Watch only found one that included the name or number of the local legal service agency. [282] Interview with Carolyn Johnson, November 17, 2003. [283] Interview with Virginia Rojo Holland, February 11, 2004. [284] Telephone interview with Kenneth Lay, December 12, 2003. [285] Human Rights Watch telephone interview with Clemente Franco, executive director, Inner City Law Center, Los Angeles, California, January 7, 2004. [286] Human Rights Watch telephone interview with Willie Mae Jones, managing attorney, Tuscaloosa Legal Services, Tuscaloosa, Alabama, February 10, 2004. [287] Interview with Carolyn Johnson, November 17, 2003. [288] Interview with Nelson H. Mock, February 11, 2004. [289] Interview with Kelli Dunn Howard, February 11, 2004. [290] Interview with Virginia Rojo-Holland, February 11, 2004. [291] Interview with Nelson H. Mock, February 11, 2004. [292]See footnote 178 for a more in-depth discussion of class action litigation issues. [293] Human Rights Watch telephone interview with K.S., Lycoming County, Pennsylvania, February 20, 2004. [294] Ibid. [295] 24 CFR 982.553(d)(1) (§ 8); 24 CFR 960.204(c) (public housing). [296] Human Rights Watch interview with Julie Boyle, executive assistant, Sarasota Housing Authority, Sarasota, Florida, July 21, 2003. [297] Sample denial letter from the Housing Authority of Baltimore City, on file with Human Rights Watch. [298] Human Rights Watch interview with Rachel Duke, social services coordinator, Housing Authority of Portland, Portland, Oregon, June 24, 2003. [299] Telephone interview with Carol Coley, August 1, 2003. [300] Where do homeless people get their mail? In some large cities, like New York, the post office allows those who are homeless to receive mail at the post office through “general delivery.” In many places, this option is not available. If they are fortunate, a social service agency, a church, or a relative may allow them to use a mailing address. [301] Generally an applicant must show an emergency (which often requires a medical note or proof of hospitalization), or sufficient proof that he or she did not receive mail (which requires certification from a post office). [302] The Cuyahoga Metropolitan Housing Authority has begun to work with homeless service providers to ensure that homeless applicants with criminal records receive notices of rejection by mailing them to the service provider’s address. The Salt Lake City County Housing Authority has also begun to consider how to handle homeless applicants who do not receive notice in time to appeal. [303] Human Rights Watch interview with Theresa Mather, assistant manager, Garden Terrace, Austin, Texas, February 12, 2004. [304] Interview with Anthony Barber, February 10, 2004. [305] Human Rights Watch interview with C.W., an African-American man at an overnight shelter in Baltimore, Maryland, November 20, 2003. Mr. W. is living with HIV and Hepatitis C. [306] Interview with Sheila Fauntleroy, January 28, 2004. [307] Human Rights Watch interview with E. G., an African-American woman in a soup kitchen in Baltimore, Maryland, November 20, 2003. [308] Human Rights Watch interview with C.L., a forty-year-old African-American homeless man, Pioneer Park, Salt Lake City, Utah, September 28, 2003. [309] Human Rights Watch interview with Ruth Joyner, case manager, Providence House, Brooklyn, New York, January 15, 2004. [310] Human Rights Watch interview with Christine Siksa, policy analyst, acting director of the Legislative and Program Division, National Association of Housing and Redevelopment Officials (NAHRO), Washington, D.C., October 29, 2003. [311] Dailey v. Housing Authority for the Birmingham District, 639 So.2d 1343 (Ala. 1994). [312] See, e.g., Spady v. Mt. Vernon Housing Authority, 41 A.D. 2d 762 ( N.Y. 2nd Dep’t 1973). The court in Spady held that the decision to deny the applicant was neither arbitrary nor capricious and had a rational basis, despite the testimony of social workers, substance abuse treatment providers, a personal physician, parole officer, and former employer that the applicant had been “rehabilitated.” The dissent in Spady noted, however, that: The State has spent countless millions of dollars to combat drug addiction and it is the policy of the State to treat drug addiction as a disease by comprehensive programs of treatment. . . . Petitioner . . . is successfully undergoing treatment and shows no signs of regression. . . . To deprive him of public housing accommodations now is yet another unfortunate revolution in the “revolving door” of drug addiction [citations omitted]. [The housing authority’s decision] is wholly without rational basis, at complete variance with the State’s public policy of treating narcotic addiction as a disease, and contrary to the nature and purpose of public housing. Ibid. p. 766. [313] Human Rights Watch interview with Amy Carpenter, staff attorney, Neighborhood Legal Services, Pittsburgh, Pennsylvania, January 27, 2004. While NLS attorneys said the applicant could have put together evidence on her own behalf at the hearing, they said that “She never would have been able to do a statutory appeal.” Human Rights Watch interview with Peggy Fried, staff attorney, Neighborhood Legal Services, Pittsburgh, Pennsylvania, January 27, 2004. [314] She was not, ultimately, approved for housing. Interview with Meghan Tighe, January 27, 2004. [315] Human Rights Watch interview with Linda Milton, paralegal, North Penn Legal Services, Williamsport, Pennsylvania, December 1, 2003. [316] After Linda Milton, a paralegal with North Penn Legal Services, told the ALJ that her client had never been prosecuted, the hearing officer scheduled the case for another hearing to give Milton time to obtain documentation. But after Milton received documentation back from the courts in Philadelphia, she was told not to bother bringing the information in—the PHA had already made its decision. “After speaking with you this morning,” read the fax sheet cover Milton received from the PHA’s Deputy Executive Director, “I realized that I would be causing you to spend unnecessary time in further meetings on this matter, so please find attached my decision on the matter of Mr. [C.A.]” Facsimile transmission to Milton from Shawn McMillin, Lycoming County Housing, dated March 19, 2001, on file with Human Rights Watch. At least one state court has found such automatic exclusion practices to be contrary to federal law and HUD guidelines. See Ouellette v. Housing Authority of the City of Old Town, Docket No. AP-03-17, 2004 Me. Super. LEXIS 60 (March 12, 2004), which is discussed in more depth in footnote 182. [317] Interview with Linda Milton, December 1, 2003. [318] NYCHA, Report of Informal Hearing Held, December 1, 2003, in the case of E.K., on file with Human Rights Watch. E.K. had been denied because of his partner, Ms. R’s criminal record. [319] Human Rights Watch interview with James Hargrove, executive director, Housing Authority of the City of Austin, Austin, Texas, February 12, 2004. Human Rights Watch sought to clarify with HUD whether, in fact, this practice was consistent with federal law, but HUD declined to respond. [320] Ibid. HACA confirmed that its policies had not changed as a result, and while they would not comment on a hypothetical case, they implied that an applicant in a similar situation would be denied. [321] The NYCHA is one of the few PHAs that actually advises denied applicants of their appellate rights. Letters to applicants denying eligibility following administrative hearing, on file with Human Rights. [322] See, e.g., Faison v. New York City Housing Authority, 283 A.D.2d 353, 726 N.Y.S.2d 23 (1st Dep’t 2001). [323] One lawyer told Human Rights Watch that attorneys in her office tape record hearings themselves. Human Rights Watch interview with an attorney at the National Legal Aid & Defender Association conference, Los Angeles, California, July 22, 2004. [324] See, e.g., Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069, 1076 (8th Cir. 1999), where the court noted: Regrettably, we do not have before us all of the evidence the MPHA considered: [the treatment records] upon which the MPHA apparently relied were not included in the record on appeal, nor can we find those records in the original District Court file. . . . Given the incompleteness of the record the parties have provided to us (and, apparently to the District Court as well), we are unable to engage in meaningful review of the MPHA’s denial of [the] application. [325] Interview with Carolyn Johnson, November 17, 2003.
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