UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: October 3, 1967.
LESSIE RANDELL, JUANITA AVENT, HENRY AVENT, INDIVIDUALLY AND ON BEHALF OF THEIR CHILDREN, AND OF TENANTS IN THE LOW INCOME PROJECTS OWNED AND OPERATED BY THE NEWARK HOUSING AUTHORITY, ISAAC AND ANN DURANT, APPELLANTS,
NEWARK HOUSING AUTHORITY AND LOUIS DANZIG, INDIVIDUALLY AND AS DIRECTOR OF THE NEWARK HOUSING AUTHORITY, APPELLEES
Biggs and Kalodner, Circuit Judges, and Van Dusen*fn*, District Judge. Biggs, Circuit Judge (concurring in part and dissenting in part).
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, District Judge.
This case presents the alleged denial of the constitutional rights of the appellants (and their families), who were tenants in the "low income" housing projects owned and operated by the defendant-appellees in the City of Newark, New Jersey. The appellants occupied their apartments pursuant to a standard lease which provided for automatic renewals for successive terms of one month, terminable by either party upon giving one month's written notice. In the late summer and early fall of 1966, the three families were served by the Newark Housing Authority with thirty-day notices of termination of their leases, with notice to vacate. All three families failed to vacate. Subsequently, the Newark Housing Authority brought "Summary Actions for Recovery of Premises" in the Essex County District Court pursuant to New Jersey statute, N.J.S.A.2A:18-53(a). Judgment for possession was entered in all three cases, but warrants of eviction were stayed temporarily. Appellant Randell was evicted January 20, 1967; appellants Avent and Durant are presently still in possession by virtue of our temporary restraining order issued April 21, 1967.
Subsequent to the judgments for possession and appellant Randell's eviction, the appellants brought suit in the United States District Court seeking an injunction restraining their eviction and reinstating the evicted Randell on the grounds that in the evictions, they had been denied due process of law as guaranteed to them by the Fourteenth Amendment. After first denying an ex parte restraining order and issuing an order to show cause, the District Court, following a hearing on the application for a preliminary injunction to reinstate Randell, denied any injunctive relief and dismissed the appellants' action on the grounds that there was no federal subject matter jurisdiction, particularly under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (3) and (4),*fn1 and on the authority of the Supreme Court's decision in Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).*fn2
The procedures followed by appellees in eviction cases were placed in the record by appellants. When the Housing Authority receives a serious complaint about a tenant, it conducts an investigation in an effort to rehabilitate the family before recommending any eviction. As pages 13-14 of the deposition of 3/3/67, offered in evidence by appellants' counsel, reveals:
"If the facts warrant it, we will recommend eviction. If the facts warrant it after an investigation and after working with the tenant and exhausting whatever remedies we have to help the tenant.
"* * * After all the facts are in and when we feel that the tenant is imposing a threat to others, the welfare of others -- * * *. We recommend eviction."
In seventy to eighty per cent. of the cases involving complaints as to tenants, the Tenant Relations office rehabilitates the family so that no eviction is required.
At the depositions of 3/3/67, the Tenant Relations office file of Randell was marked P-2 and the similar file of Avent was marked P-3. These files were made available to appellants' counsel in March 1967. The Tenant Relations office determines "whether a tenant is undesirable or tenant should be removed because of the tremendous adverse effect it has on the neighbors and disturbing a lot of people". In their investigation of complaints, the Tenant Relations office wants "to make sure what is said about [the tenants] is plausible and it is evidential and can be proved". Discussions of a tenant's problems are conducted with him primarily by the assigned case worker. But the case is also discussed by Tenant Relations office personnel with the project manager. Finally, after discussions between the Director of Tenant Relations and the case worker, the recommendation to evict, if any, is made. "The tenant is notified of the complaint but without divulging the identity of the complainant". Such notification is oral. The tenants are given an opportunity to state their views of the various complaints to the case worker. Tenants are told of the decision to evict, and given all the reasons therefor, before any legal proceedings are instituted. The appellants in this case were told of the complaints against them. Where the eviction is for nonpayment of rent or for one other cause not applicable to this situation,*fn3 the above procedure is not necessarily followed. Written reports of the investigation by the case worker are placed in the tenant's file as part of the regular course of business. The names of the complainants do not necessarily appear in the reports. The abovedescribed procedures were followed in the case of the named appellants in this case.*fn4
Rev. Porter, who has a college degree and "very much" of a "background in social work," was the case worker assigned to investigate the Avent and Randell families. He notified them of the complaints against them. His several visits with these families beginning in May 1964 are enumerated at pages 51 and following of Deposition P-2. All the reports in the files of Randell and Avent were prepared by Rev. Porter and signed by the Director of Tenant Relations.
At the argument before this court, it was conceded that the appellants were present with counsel on October 10, 1966, when the above "Summary Action for Recovery of Premises" came before the Essex County District Court for hearing. The circular on eviction procedure issued by the Department of Housing and Urban Development on February 7, 1967, described and quoted in part in Thorpe v. Housing Authority, note 4, supra, presumably applies to the Newark Housing Authority since that date,*fn5 and, furthermore, this record indicates that appellees complied substantially with the requirements of this circular during 1966 before it was issued.*fn6
The appellants urge us to reverse the District Court on the grounds that there was subject matter jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 because their claim of denied due process was neither frivolous nor insubstantial. Baker v. Carr, 369 U.S. 186, 199, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Bell v. Hood, 327 U.S. 678, 682-683, 66 S. Ct. 773, 90 L. Ed. 939 (1946). In addition, they argue that the Housing Authority and its director were persons within the scope of § 1983. They claim that they were evicted without any "administrative type" hearing in which they were afforded notice of the reason for eviction, the chance to contest the eviction, or the chance to explain, rebut, contest, or confront witnesses and informers. Such shortcomings, they urge, constitute action under color of state law prohibited by the Fourteenth Amendment, the remedy for which was specifically granted in the above cited §§ 1343 and 1983.
The foregoing facts make clear that the appellants have failed to sustain their burden of proving their right to a preliminary injunction. See Thorpe v. Housing Authority, supra. The dismissal of the action by the District Court is a more difficult question.
Based on the information that is available to us on this appeal, it is quite clear that the New Jersey legislature has a comprehensive public housing scheme, N.J.S.A. 55:14A-1 to 14A-58. Regardless of the formalties or procedures for administrative action within any housing authority established under these laws, the problem of eviction of tenants is governed by the New Jersey judicial rules relating to proceedings between landlord and tenant, N.J.S.A. 2A:18-51 to 18-61. Under these statutes, in order for a housing authority to enforce an eviction, they must have recourse to the state courts. Although possession is initially decided in a "summary" action, N.J.S.A. 2A:18-53(a), and that action, once judgment is unappealable, N.J.S.A. 2A:18-59,*fn7 the statute specifically provides that the "landlord * * * shall remain liable in a civil action for unlawful proceedings * *." N.J.S.A. 2A:18-59. See Terrill Manor, Inc. v. Kuckel, 94 N.J.Super. 25, 226 A.2d 733 (App.Div.1967). Furthermore, at any time before such a "summary" trial under N.J.S.A. 2A:18-53(a),*fn8 either party has the right to ask the Superior Court to transfer the case to its jurisdiction, N.J.S.A. 2A:18-60, where trial is by jury unless waived and all judgments are fully appealable, N.J.S.A. 2A:18-61.
Viewing thus the entire statutory pattern, it does seem clear that the most probable interpretation of the statutes guarantees due process via the necessary role the state courts play in any eviction.*fn9 Bourjois, Inc. v. Chapman, 301 U.S. 183, 189, 57 S. Ct. 691, 81 L. Ed. 1027 (1937). As Mr. Justice Douglas observed, concurring in Thorpe v. Housing Authority, 386 U.S. 670, 678, 87 S. Ct. 1244, 1248, 18 L. Ed. 2d 394:
"* * * is there a constitutional requirement for an administrative hearing where, as here, the tenant can have a full judicial hearing when the authority attempts to evict him through judicial process?"
Furthermore, the appellants designated their suit in the Federal District Court a "class action" (F.R.Civ.P.23). As such, the issue in this litigation seems to be the constitutionality of the entire New Jersey Local Housing Authorities Law and its future application to parties similarly situated, not just the application in this one instance to these particular individuals. Not only are the New Jersey courts sufficiently competent in this case to give any needed relief to individuals, see, e.g., Kutcher v. Housing Authority of City of Newark, 20 N.J. 181, 20 N.E. 181, 119 A.2d 1 (1955), but their alleged illegal procedures must be tested or proved by the appellants since New Jersey court procedures would play a crucial role in our decision of any "due process" constitutional issues.*fn10 A party cannot refuse to make any use of a system of "administrative" and "judicial" relief clearly open to him and thus create a record on which a Federal Court can decide that the party has been denied due process, or that due process safeguards are lacking.*fn11
On this record, it is not clear that there is an absence of jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, since Monroe v. Pape, supra, presented a significantly different factual situation.*fn12 At the least, appellants should have been entitled to the opportunity to brief and argue fully the issue of jurisdiction after it had been properly raised by the District Court. After the appellants have the opportunity to demonstrate adequately that the state laws and judicial procedure did not afford them a forum to grant their claims for constitutional protection within appellees' eviction procedures,*fn13 then the Federal Courts will be in a position to decide whether the appellants have any legitimate claims of constitutional violations.*fn14
In the meanwhile, it appears on this record and in light of the New Jersey law noted above that the wisest course in this situation may be for the District Court to abstain from any further action until it has the necessary information before it for a decision on the merits.*fn15
For the foregoing reasons, the temporary restraining order issued by this court on April 21, 1967, enjoining the eviction of appellants Avent and Durant, will be vacated and set aside, the order of the District Court denying the application for preliminary injunctions by appellants will be affirmed, and the case will be remanded to the District Court for vacation of the order dismissing the actions.
BIGGS, Circuit Judge (concurring in part and dissenting in part).
The decision of the Supreme Court in Thorpe v. Housing Authority of the City of Durham, 386 U.S. 670, 87 S. Ct. 1244, 18 L. Ed. 2d 394, was handed down on April 17, 1967 and can be of no avail to the tenant-appellants for it was stated that "There is no suggestion that the basic procedure it [the HUD circular of February 7, 1967] prescribes is not to be followed in all eviction proceedings that have not become final." Id. at 673. The "Summary Ejectment Proceedings" were concluded in the Essex County District Court on October 10, 1966.
I agree with all statements of the majority opinion except as to the directions to the court below embraced in the final paragraph of the opinion. I would amend those directions by providing that the temporary restraining order issued by this court on April 21, 1967, enjoining the evictions of tenant-appellants Avent and Durant, should not be vacated. Under the circumstances of this case I would adopt the unusual procedure of continuing the restraint until the case at bar has finally been disposed of because I believe that if the premises are vacated it would be very difficult for the Newark Housing Authority to displace new tenants in favor of Avent and Durant should they prevail in the instant case. Moreover, as I see the instant case, if the evictions are not stayed the case at bar will become moot.