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Kutcher v. Housing Authority

Decided: December 19, 1955.


On certified appeal to the Appellate Division from the Chancery Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J. Wachenfeld, J., concurring in result.


The plaintiff Hyman Kutcher was a tenant of the Housing Authority of the City of Newark, in Seth Boyden Terrace, a federally-aided low-rent housing project, and the co-plaintiff James Kutcher, Hyman's son, resided there in his father's apartment, when on December 18, 1952 the Authority demanded of the plaintiff Hyman Kutcher, by letter, "a certificate that no member of the family occupying" his apartment "is a member of any organization listed by the Attorney General of the United States as subversive," and set down, it was said, in the form of certificate enclosed. Of this, more hereafter. The addressee was advised that "If you and the members of your family do not belong to any of the organizations listed, have the head of the family sign the certificate," and the signature witnessed, and return it, dated, within three days, and that the Authority "will be obliged to take action to evict those families who do not file a signed certificate." Reference was made to the proviso of the Independent Offices Appropriation Act of 1953, Public Law 455, 82 d Congress, 66 Stat. 403, 42 U.S.C.A., section 1411 c, approved July 5, 1952, commonly known as the "Gwinn Amendment," that no housing unit constructed under the United States Housing Act of 1937, as amended, "shall be occupied by a person who is a member of an organization designated as subversive by the Attorney General," and the "foregoing prohibition shall be enforced by the local housing authority."

The plaintiff tenant refused to sign the tendered certificate.

It was stipulated below that the federal and state regulations "require that only those persons or families with income in the lowest income groups be permitted to occupy these dwellings as tenants"; that under the lease the plaintiff tenant "agreed to surrender possession whenever requested to do so by" the Authority, "upon the receipt of thirty days notice in writing," and "Further provision was made * * * for re-entry by the landlord in case of default in any of the provisions of the lease, with or without notice of an intention

to do so"; and that the plaintiff Hyman Kutcher "alleges that he is not a member of any organization of (sic) the Attorney General's list and his son" James, who resides in his apartment, "is a member of the Socialist Workers Party, an organization whose name does appear on said list."

Defendant was enjoined from bringing eviction proceedings. The finding was that the proposed certification was not within the requirement of the Gwinn Amendment. Plaintiffs say the Amendment cannot be constitutionally applied to them and, if it be constitutional, the Authority's action was beyond the statute and ultra vires. The Authority insists the Amendment is applicable and, moreover, it has "contractual rights" entitled to recognition and protection, "irrespective of [its] motive in asserting those rights," i.e., its contractual right to "terminate the monthly tenancy created by the lease," which it elected to do, "by the giving of the notice as provided in the agreement"; and the tenant having failed to vacate at the time specified in the notice, the court "has no power, under the law of this State, to interfere with the exercise of the rights conferred" upon the Authority "by the contract voluntarily" made by the parties.

The asserted constitutional deficiency, as we understand it, is that the tenant's association with a listed organization does not of itself establish, even prima facie, reasonable grounds for belief in the tenant's disloyalty, and a state agency may not "discriminate against members of any such organization solely on the basis of membership therein," nor "arbitrarily prevent any of its citizens from enjoying these statutorily created privileges"; and the "exclusion of otherwise qualified persons solely because of membership in organizations designated as subversive by the Attorney General has no tendency whatever to further" the statutory purpose of eliminating "slums" and providing "housing for persons of low income" and, since association alone is enough, even though innocent, there is that "indiscriminate classification" which must fall as an exertion of arbitrary power, and the "oath offends due process." The argument is drawn from these cases, among others: Wieman v. Updegraff, 344 U.S. 183,

73 S. Ct. 215, 97 L. Ed. 216 (1952); Housing Authority of City of Los Angeles v. Cordova, 130 Cal. App. 2 d Supp. 883, 279 P. 2 d 215 (App. Dept. Super. Ct. 1955).

The Supreme Court of Wisconsin lately declared that "there is a complete absence of any congressional finding, of any activity of subversive organizations which threatened the carrying out of federally aided housing projects, to support the enactment of the Gwinn Amendment, or of any evidence produced before congressional committees tending to establish the existence of such evil," and the court "deems the possible harm which might result in suppressing the freedoms of the First Amendment (of the United States Constitution) outweigh any threatened evil posed by the occupation by members of subversive organizations of units in federally aided housing projects," and for that reason the state action taken under the Gwinn Amendment was "unconstitutional and void," and, "as a necessary corollary thereof," it also "violates either sec. 3 or 4, Art. I, of the Wisconsin Constitution or both," which "guarantee the same freedom of speech and right of assembly and petition as do the First and Fourteenth amendments of the United States constitution." Lawson v. Housing Authority of City of Milwaukee, 270 Wis. 269, 70 N.W. 2 d 605 (Sup. Ct. 1955). The Federal Supreme Court, subsequent to the argument in the cause now before us, denied certiorari, without more. Housing Authority of City of Milwaukee v. Lawson, 350 U.S. 882, 76 S. Ct. 135, 100 L. Ed. (1955).

It would seem that the mere denial of certiorari imports no expression of opinion upon the merits of the case. When the reasons are given, the denial will have the effect indicated by the reasons stated, ...

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