2005AP410 Driver v. Housing Authority of Racine County

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“‘Actual notice’ will not suffice. Federal regulations mandate written notice, and strict compliance is imperative as a matter of law and public policy. By reading an ‘actual notice’ exception into the regulatory scheme, we would invite housing authorities to dispense with proper notice whenever they determined for themselves that the tenant ‘must have known’ the basis for the allegations against them. Tenants would have no recourse unless they could prove, based on a record that may be sparse or nonexistent, that they did not actually have such notice. Fundamental fairness does not countenance such a result….

“Neither Driver nor Bizzle received adequate notice of HARC’s reasons for terminating assistance because the written communications were not specific enough to satisfy due process requirements. Because the regulatory scheme expressly requires written notice and written decisions, we look only to these documents and not to other forms of notice. Indeed, reading an ‘actual notice’ exception into the HUD regulations would raise serious public policy concerns, as it would invite housing authorities to disobey the regulations whenever they deemed a tenant to have actual knowledge of what he or she did wrong and would effectively shift the burden of ascertaining the basis of the termination decision to the tenant. Tenants who had ‘constructive notice,’ moreover, would often be deprived of their property without redress because sparse or nonexistent records would preclude them from disproving the housing authority’s assertion that it gave the tenant actual notice. Moreover, even were we to allow an ‘actual notice’ exception, it would have to be oral notice that contained all of the specific information that Edgecomb mentioned. Neither party received such notice here. We also remand these cases to the circuit court to determine the appropriate remedy. In part, this remedy will include an injunction commanding HARC to obey due process and regulatory requirements. The court shall also determine what damages Bizzle and Driver deserve for the improper deprivation of their housing assistance benefits. Finally, the court should explore the possibility of getting both tenants back onto the section 8 program.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Racine County, Mueller, J., Brown, J.

Attorneys:

For Appellant: Melissa Anne Frost, Elkhorn; Gai A. Lorenzen, Racine

For Respondent: Jan M. Schroeder, Milwaukee