[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

Legal Opinion: GCH-0076

Index: 2.245

Subject: PH Due Process Determination: Illinois

August 24, 1993

HUD DUE PROCESS DETERMINATION

for the

STATE OF ILLINOIS

TABLE OF CONTENTS

I. Jurisdiction: State of Illinois. . . . . . . . . . . . . . . . . . 2

II\. Elements of due process . . . . . . . . . . . . . . . . . . . . . .
2

III\. Eviction Proceedings under the Illinois Forcible Entry and

Detainer statute (\"FED statute\"). . . . . . . . . . . . . . . . . . 3

A. Overview of the Illinois FED statute . . . . . . . . . . . . . 3

B. Analysis of the FED Statute under each of the regulatory due

processs elements. . . . . . . . . . . . . . . . . . . . . . . 6

1\. Adequate notice to the tenant of the grounds for terminating

the tenancy and for eviction

(24 CFR § 966.53(c)(1)) . . . . . . . . . . . . . . . . . 6

2\. Right to be represented by counsel (24 CFR § 966.53(c)(2)) 8

3\. Opportunity for the tenant to refute the evidence presented

by the PHA, including the right to confront and cross-

examine witnesses (24 CFR § 966.53(c)(3)) . . . . . . . . 9

4\. Opportunity to present any affirmative legal or equitable

defense which the tenant may have (24 CFR § 966.53(c)(3)) 12

5\. A decision on the merits (24 CFR § 966.53(c)(4)) . . . . . 13

C. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ANALYSIS

I. Jurisdiction: State of Illinois.

II\. Elements of due process

Section 6(k) of the United States Housing Act of l937 (42 U.S.C.

1437d(k), as amended by section 503(a) of the National Affordable
Housing Act

of 1990, Pub. L. l0l-625, approved November 28, l990), provides that:

For any grievance concerning an eviction or termination of tenancy that

involves any criminal activity that threatens the health, safety, or

right to peaceful enjoyment of the premises of other tenants or

employees of the public housing agency or any drug-related criminal

activity on or near such premises, the agency may . . . exclude from its

grievance procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing in court

which the Secretary determines provides the basic elements of due

process . . . .

The statutory phrase, \"elements of due process,\" is defined by HUD at
24

CFR § 966.53(c) as:

. . . an eviction action or a termination of tenancy in a State or local

court in which the following procedural safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for terminating the

tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence presented by the

PHA \[public housing agency\] including the right to confront and

cross-examine witnesses and to present any affirmative legal or

equitable defense which the tenant may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures satisfy this

regulatory definition is called a \"due process determination.\" The
present

due process determination is based upon HUD\'s analysis of the laws of
the

State of Illinois to determine if an action for eviction under Illinois
law

requires a hearing which comports with all of the regulatory \"elements
of due

process,\" as defined in § 966.53(c).

In Illinois, a public housing agency (PHA) may evict a tenant by an

action for forcible entry and detainer (\"FED\"). Ill. Ann. Stat. ch.
110,

paras. 9-101 et seq. (Smith-Hurd 1992) (\"FED Statute\").

In addition to the general authority for eviction under the FED

Statute, there are two special procedures for drug evictions under the
FED

Statute:

\(1\) A PHA may bring an FED action to evict the tenant for for drug-

trafficking under Ill. Ann. Stat. ch. 110, para. 9-118.

\(2\) A landlord may bring an FED action to evict the tenant under the

Illinois Controlled Substance and Cannabis Nuisance Act, Ill. Ann.

Stat. ch. 100-1/2, paras. 13.9 et seq. (Smith-Hurd 1992)(\"Nuisance

Act\").

The present due process determination covers Illinois eviction

proceedings under the FED Statute, including the special procedures for
drug

evictions (under Paragraph 9-118 and under the Nuisance Act). HUD finds
that

the requirements of Illinois law governing an action for forcible entry
and

detainer under the FED Statute include all of the elements of basic due

process, as defined in 24 CFR § 966.53(c).

III\. Eviction proceedings under the Illinois Forcible Entry and

Detainer statute (\"FED statute\")

A. Overview of the Illinois FED statute

FED Action

Under Illinois law, an action for possession under the FED Statute is

brought in the Illinois circuit court. An action under the FED Statute
may be

maintained when:

any lessee of the lands or tenements, or any person holding under such

lessee, holds possession without right after the termination of the

lease or tenancy by its own limitation, conditions or terms, or by

notice to quit or otherwise. Ill. Ann. Stat. ch. 110, para. 9-102(a)(4)

(Smith-Hurd 1992.)

To commence an FED action, a complaint by the party entitled to

possession of the premises is filed in the circuit court of the county
where

the premises are located. The complaint must state that the filing party
is

entitled to possession of the premises described, and that the named
defendant

unlawfully withholds possession. On the filing of such a complaint, a
summons

will be issued by the clerk of the court. Ill. Ann. Stat. ch. 110, para.
9-

106 (Smith-Hurd 1992).

The Illinois Code of Civil Procedure (Ill. Ann. Stat. ch. 110, para. 2-

101 et seq. (1992)), and the Illinois Supreme Court Rules (Ill. Ann.
Stat.

ch. 110A (Smith-Hurd 1992)), are applicable to the FED Statute, except
to the

extent that a like procedure is specifically provided in the FED
Statute.

Ill. Ann. Stat. ch. 110, para. 1-108 and ch. 110A, para. 1 (Smith-Hurd
1992).

FED action under Paragraph 9-118:

PHA drug-trafficking eviction \-- Accelerated docket

Paragraph 9-118 of the FED Statute authorizes a special FED procedure

for use in drug-trafficking evictions by Illinois PHAs. (This provision
was

signed by the Governor on August 28, 1992, and was effective on January
1,

1993.) Paragraph 9-118 provides an accelerated docket for PHA eviction
cases

premised on allegations of drug trafficking.

Under Paragraph 9-118, a PHA must file a sworn complaint alleging direct

evidence of drug trafficking within or upon the premises by or with the

knowledge and consent of or in concert with the defendant named in the

complaint. The PHA must serve the defendant with the complaint and
demand for

possession of the type specified in Paragraph 9-104 of the FED Statute
at

least 14 days before a hearing on the complaint is held.

At the hearing, a trial must be held immediately, the same as in other

proceedings for possession. The matter may not be continued beyond seven
days

from the date set for the first hearing on the complaint except by
agreement

of the parties. After a trial, if the court finds by a preponderance of
the

evidence that the PHA has proven the allegations in the complaint, the
court

must enter judgment for possession in the PHA\'s favor. The judgment may
not

be stayed for more than 7 days, and must order that the PHA is entitled
to re-

enter the premises immediately thereafter.

FED action under the Illinois Controlled Substance and Cannabis Nuisance
Act

(\"Nuisance Act\")

The Nuisance Act (as amended effective January 1, 1992) allows a

landlord, including a PHA, to terminate a lease where:

\[A\]ny lessee or occupant, on one or more occasions, shall use

leased premises for the purpose of unlawful possessing, serving,

storing, manufacturing, cultivating, delivering, using, selling or

giving away controlled substances or shall permit them to be used

for any such purposes . . . .

Ill. Ann. Stat. ch. 100-1/2, para. 24(a) (Smith-Hurd 1992).

In such cases, the owner or lessor may bring a forcible entry and

detainer action under the FED Statute. Two important provisions of the

Nuisance Act apply to such evictions:

\-- The Nuisance Act provides that a lessor may institute an action

under the FED Statute where the tenant has not vacated the

premises within five days after receipt of a written notice to

vacate. Ill. Ann. Stat. ch. 100-1/2, para. 24(c) (Smith-Hurd

1992).

\-- The Nuisance Act provides a rebuttable presumption that if a

controlled substance is found or used anywhere in the premises of

an apartment, then the controlled substance was either used or

possessed by a lessee or occupant or that a lessee or occupant

permitted the premises to be used for that use or possession.

Ill. Ann. Stat. ch. 100-1/2, para. 24(b) (Smith-Hurd 1992).

Due process clause of Illinois Constitution

Any action or proceeding under the FED Statute must comply with Article

I, Section 2 of the Illinois State Constitution (entitled \"Due Process
and

Equal Protection\"). Article I, Section 2 requires that \"\[n\]o person
shall be

deprived of life, liberty or property without due process of law nor be
denied

the equal protection of the laws.\"

B. Analysis of the FED Statute under each of the regulatory due

processs elements

1\. Adequate notice to the tenant of the grounds for terminating the

tenancy and for eviction

(24 CFR § 966.53(c)(1))

Paragraph 9-118 drug evictions:

PHA demand for possession and complaint

In Paragraph 9-118 drug trafficking cases, the PHA must serve the tenant

with a notice demanding immediate possession of the premises. Notice is

governed by Paragraph 9-104, which provides for the following demand for

possession:

I hereby demand immediate possession of the following described

premises: (describing the same.)

PHA drug trafficking evictions involve a situation that the Illinois

legislature has determined to be an \"imminent danger and peril to the
lives,

safety, health and mental and physical well being of the \[PHA\]
residents.\"

Preamble to IL. S.B. 2178, enacted as Ill. Ann. Stat. ch. 110, para.
9-118

(Smith-Hurd 1992).

To commence a drug eviction under Paragraph 9-118, a PHA must serve a

verified complaint on the defendant. The complaint must allege that
there is

direct evidence of trafficking in cannabis, narcotics or controlled
substances

within or upon the premises by or with knowledge and consent of, or in
concert

with the person or persons named in the complaint. The complaint must
set

forth the relevant facts (Paragraph 9-118). Thus, the grounds for
terminating

the tenancy and for eviction are set forth in the complaint. The PHA
must

serve the defendant with the complaint at least 14 days before a hearing
on

the complaint is held.

Other FED actions: Notice to quit and complaint

Notice to quit

In FED actions (other than cases brought under Paragraph 9-118 or the

Nuisance Act), the landlord must give 10 days notice to quit prior to

commencement of the action.

When default is made in any of the terms of a lease, it is not necessary

to give more than 10 days notice to quit, or of the termination of such

tenancy, and the same may be terminated on giving such notice to quit at

any time after such default in any of the terms of such lease. Ill.

Ann. Stat. ch. 110, para. 9-210 (Smith-Hurd 1992).

In FED actions under the Nuisance Act, the landlord must give five days

notice to vacate prior to commencement of the action.

According to Paragraph 9-210, the notice should be in substantially the

following form:

To A.B.: You are hereby notified that in consequence of your default in

(here insert the character of the default) of the premises now occupied

by you, being, etc., (here describe the premises) I have elected to

terminate your lease, and you are hereby notified to quit and deliver up

possession of the same to me within 10 days of this date (dated, etc.).

Under the FED Statute, when termination of a tenancy is sought for

violation of the lease provisions, notice of the landlord\'s intent to

terminate must be given in order to maintain an action for possession,
unless

the lease contains forfeiture or waiver of notice provisions which cause
the

lease to terminate by its own limitation. Westerman v. Gilmore, 17
Ill.App.2d

455, 150 N.E.2d 660, 663 (1958).

Under the FED Statute, the notice to quit must state the character of

the tenant\'s default. The notice must be served in accordance with Ill.
Ann.

Stat. ch. 110, para. 9-211 (Smith-Hurd 1992).

Complaint

A complaint must contain substantial allegations of fact necessary to

state the cause of action. Ill. Ann. Stat. ch. 110, para. 2-601
(Smith-Hurd

1992). The allegations in a complaint must be sufficiently specific to

reasonably inform the defendant by factually setting forth the elements

necessary to state the cause of action. People ex rel. Scott v. College
Hills

Corp., 91 Ill.2d 138, 435 N.E.2d 463, 467 (1982).

Notice: Conclusion

Under Illinois law, both the complaint and either the notice to quit (in

non-Paragraph 9-118 cases or the demand for possession in Paragraph
9-118

cases) provide adequate notice to the tenant of the grounds for
terminating

the tenancy and for eviction. Notice of the grounds for eviction is also

required by the due process clause of the Illinois State Constitution.

Article I, Paragraph 2.

2\. Right to be represented by counsel (24 CFR § 966.53(c)(2))

Although the right to representation by counsel in civil proceedings is

not explicitly stated by Illinois statutes and court rules, many
provisions

imply a right of representation by counsel. The following are some
examples:

\(1\) Special appearances may be made by attorney for the purpose of
objecting

to the jurisdiction of the court over the person of the defendant. Ill.

Ann. Stat. ch. 110, para. 2-301(a) (Smith-Hurd 1992).

\(2\) The appearance and withdrawal of attorneys is governed by Ill.
Ann.

Stat. ch. 110A, para. 13 (Smith-Hurd 1992), which provides that an

attorney must file a written appearance or other pleadings before the

attorney addresses the court, that the attorney may not withdraw an

appearance for a party without leave of the court, and that such motion

may be denied by the court if granting it would be inequitable.

\(3\) Opening statements may be made first by the attorney for the
plaintiff,

and then by the attorney for the defendant, as soon as the jury is

empaneled. Ill. Ann. Stat. ch. 110A, para. 235 (Smith-Hurd 1992).

\(4\) The duties of the attorney directing interrogatories are set forth
in

Ill. Ann. Stat. ch. 110A, para. 213 (Smith-Hurd 1992).

\(5\) Reasonable notice of a standard of writing must be given to the
opposite

party or attorney before being admitted in evidence by the court

for comparison. Ill. Ann. Stat. ch. 110, para. 8-1502 (Smith-Hurd

1992).

\(6\) An opposing party, attorney and witnesses may be given reasonable

opportunity to examine proposed standards before their introduction into

evidence. Ill. Ann. Stat. ch. 110, para. 8-1503 (Smith-Hurd 1992).

\(7\) Every pleading, motion and other paper of a party represented by
an

attorney must be signed by at least one attorney of record in the

attorney\'s individual name. Ill. Ann. Stat. ch. 110A, para. 137 (Smith-

Hurd 1992).

The right to representation by counsel in civil actions is fundamental

and part of the due process of law guaranteed to all civil litigants in

Illinois. See In re Marriage of Fahy, 208 Ill. App. 3d 677, 567 N.E.2d
552

(1st Dist. 1991). This right is required by the due process clause of
the

Illinois Constitution. Article I, Section 2.

3\. Opportunity for the tenant to refute the evidence presented

by the PHA, including the right to confront and cross-

examine witnesses (24 CFR § 966.53(c)(3))

A tenant, as party to the action, has the right to call and cross-

examine the representatives of the PHA, in order to impeach their
credibility

or establish facts necessary to the presentation of the tenant\'s
defense. A

party may cross-examine an adverse party or the party\'s agent.

Upon the trial of any case any party thereto or . . . the officers,

directors, managing agents or foreman of any party to the action, may be

called and examined as if under cross-examination at the instance of any

adverse party. The party calling for the examination is not concluded

thereby but may rebut the testimony thus given by countertestimony and

may impeach the witness by proof of prior inconsistent statements. Ill.

Ann. Stat. ch. 110, para. 2-1102 (Smith-Hurd 1992).

Use of this provision has been held proper for the purpose, among
others, of

bringing out facts which a party might not otherwise be able to bring
out.

Babcock v. Chesapeake and O. Ry. Co., 83 Ill.App.3d 919, 404 N.E.2d 265,
271

(1st Dist. 1979); People v. Davis, ll App.3d 775, 298 N.E.2d 350, 352
(1st

Dist. 1973).

The Illinois Supreme Court Rules provide that the credibility of a

witness may be attacked by any party. Ill. Ann. Stat. ch. 110A, para.
238

(Smith-Hurd 1992). Depositions may be used for the purpose of impeaching
the

testimony of the deponent as a witness. Ill. Ann. Stat. ch. 110A, para.
212

(1992). However, under the rules of evidence, no party may be
disqualified as

a witness, except as provided in Ill. Ann. Stat. ch. 110, para. 8-101
(Smith-

Hurd 1992), by reason of the person\'s interest in the action or
proceeding, as

a party or otherwise, or by reason of his or her conviction of a crime.
Ill.

Ann. Stat. ch. 110, para. 8-101 (Smith-Hurd 1992).

The tenant may subpoena any other witness, and require the production of

documents or other tangible items at trial. Ill. Ann. Stat. ch. 110A,
para.

237 (Smith-Hurd 1992). Unreasonable refusal to (1) comply with such

subpoenas, or (2) answer any written question upon the taking of a
deposition

or any question propounded upon oral examination, or (3) otherwise to
comply

with the rules of the court relating to discovery and pretrial
procedure, may

cause the court, upon motion by the adversely affected party, to enter
various

orders against the offending party, including (1) barring a witness from

testifying concerning that issue, (2) staying further proceedings, (3)

striking the pleadings relating to that issue, and (4) entering a
default

judgment or dismissing the action as to any claims or defenses asserted
in any

pleading to which that issue is material. Ill. Ann. Stat. ch. 110A,
para.

219(c) (Smith-Hurd 1992).

The defendant in a forcible entry and detainer action may aver matters

by way of defense in refutation of the plaintiff\'s asserted right to

possession. Dobsons Inc. v. Oak Park Nat. Bank, 86 Ill. App. 3d 200, 407

N.E.2d 993, 997 (1st Dist. 1980); Clark Oil & Refining Corp. v. Banks,
34 Ill.

App. 3d 67, 339 N.E.2d 283, 287 (1st Dist. 1975).

Based upon the foregoing, a tenant in a proceeding under the FED Statute

must be given full opportunity to confront and cross-examine witnesses
and

refute the evidence presented by the PHA. Such right to refute PHA
evidence

is also guaranteed by the due process clause of the Illinois State

Constitution. Article I, Section 2.

Eviction under Nuisance Act \-- Rebuttable presumption

The FED Statute, as amended, provides the eviction procedures to be used

under the Nuisance Act. HUD has determined that an action for eviction
under

the FED statue provides a defendant the opportunity to refute the
evidence

presented by the PHa, including the right to confront and cross-examine

witnesses.

The Nuisance Act provides a rebuttable presumption that if a controlled

substance is found or used anywhere in the premises of an apartment,
then the

controlled substance was either used or possessed by a lessee or
occupant or

that a lessee or occupant permitted the premises to be used for that use
or

possession.

Under Illinois law, a rebuttable presumption has the effect of creating

a prima facie case as to the particular issue in question, and thus
requires

the party against whom the presumption operates to come forward with
evidence

to meet the presumption. Diederich v. Walters, 65 Ill. 2d 95, 357 N.E.2d
1128

(1976). Once the party opposing the presumption produces sufficient
evidence,

the presumption vanishes. Id. Thus, nothing in the presumption affects
the

tenant\'s right to refute evidence, confront and cross-examine
witnesses, and

present any defenses. Based on the foregoing, HUD finds that an FED
action

under the Nuisance Act provides the tenant an opportunity to refute the

evidence presented by the PHA, confront witnesses, and present defenses
in

conformity with the HUD due process requirements.

4\. Opportunity to present any affirmative legal or equitable

defense which the tenant may have (24 CFR § 966.53(c)(3))

The FED Statute provides that:

The defendant may under a general denial of the allegations of the

complaint offer in evidence any matter in defense of the action. No

matters not germane to the distinctive purpose of the proceeding shall

be introduced by joinder, counterclaim or otherwise. Ill. Ann. Stat.

ch. 110, para. 9-106 (Smith-Hurd 1992).

The purpose of a proceeding under the FED Statute is regaining

possession of the property. Matters germane to this purpose may be
introduced

by the defendant. Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d
833,

837 (1970), cert. den., appeal dismissed by Burton v. American Natl.
Bank &

Trust Co., 91 S.Ct. 924, 401 U.S. 928, 28 L.Ed.2d 209 (1971).

The language \"or otherwise\" has been held to mean that where there is
a

general denial a party is permitted to raise an issue by first
presenting

evidence at the hearing, even though the issue was not raised earlier by
a

proper pleading. Samek v. Newman, 164 Ill.App.3d 967, 518 N.E.2d 422,
424

(1st Dist. 1987); Kelly v. Lunding, 131 Ill. App. 3d 410, 475 N.E.2d
1093,

1095 (1st Dist. 1985). \"Germane\" has been defined as closely allied,
closely

connected, relevant, pertinent or appropriate. Kelly 131 Ill. App. 3d at
413;

Hareas v. Kyriakopoulos, 101 Ill. App. 3d 393, 428 N.E.2d 500, 502 (1st
Dist.

1981).

The defendant may raise both equitable and legal defenses germane to the

purpose of the proceeding. Rodriguez v. Owaynat, 137 Ill.App.3d 1017,
485

N.E.2d 438, 441 (1st Dist. 1985). By allowing certain germane equitable

defenses to be considered, the FED Statute provides procedural due
process.

Pleasure Driveway and Park Dist. of Peoria v. Kurek, 27 Ill.App.3d 60,
325

N.E.2d 650, 655 (3d Dist. 1975). Among the defenses which have been
permitted

to be raised are civil rights violations and the existence of
unconscionable

contracts. Johnson v. Illinois Dept. of Public Aid, 467 F.2d 1269 (7th
Cir.

1972); Rosewood, supra.

In addition, if a defendant appears at the time and place specified in a

summons issued under the FED Statute, as amended, as required, \"he need
not

file an answer unless ordered by the court; and when no answer is
ordered, the

allegations of the complaint will be deemed denied, and any defense may
be

proved as if it were specifically pleaded.\" Ill. Ann. Stat. ch. 110A,
para.

181(b)(2) (Smith-Hurd 1992). Paragraph 2-613(a) of Chapter 110 further

provides that the \"\[p\]arties may plead as many causes of action,

counterclaims, defenses, and matters in reply as they may have . . . .\"

Based upon the statutes and case law, a tenant will have the opportunity

to present affirmative defenses which are germane to the issue of
possession

under the FED Statute.

5\. A decision on the merits (24 CFR § 966.53(c)(4))

The Civil Practice Law of Illinois provides that \"\[t\]he court shall

determine the rights of the parties and grant to any party any
affirmative

relief to which the party may be entitled on the pleadings and the
proof.\"

Ill. Ann. Stat. ch. 110, para. 2-1301 (Smith-Hurd 1992). This provision

requires a decision in the proceeding based upon the merits of the case.

Additional provisions of Illinois law confirm that the merits of an

action must be the basis for a decision. Regardless of whether the FED
action

is tried as a jury or non-jury trial, the decision must be on the merits
\--

based on the facts and the law.

The FED Statute provides that either party may demand a jury trial in an

eviction from residential premises. Ill. Ann. Stat. ch. 110, para. 9-108

(Smith-Hurd 1992). The jury is given written instructions, unless the
parties

agree otherwise, as to the law of the case. Provisions relating to trial
by

jury permit the parties to submit (i) written instructions on the law to
guide

the jury\'s deliberations (Ill. Ann. Stat. ch. 110, para. 2-1107
(Smith-Hurd

1992)) and (ii) specific questions of fact to be determined by the jury
in its

findings (Ill. Ann. Stat. ch. 110, para. 2-1108 (Smith-Hurd 1992)). The
jury

is permitted to take into the jury room for use during their
deliberation all

papers read or received into evidence, except depositions. Ill. Ann.
Stat.

ch. 110, para. 2-1107(a), (c) and (d)(Smith-Hurd 1992).

The verdict in a jury trial is based on questions of fact submitted to

the jury. When there is no jury, the defendant may move for a finding or

judgment at the close of plaintiff\'s case. \"In ruling on the motion
the court

shall weigh the evidence, considering the credibility of the witnesses
and the

weight and quality of the evidence . . . . If the ruling on the motion
is

adverse to the defendant, the defendant may proceed to adduce evidence
in

support of his or her defense, in which event the motion is waived.\"
Ill.

Ann. Stat. ch. 110, para. 2-110 (Smith-Hurd 1992).

In addition, the right to a decision on the merits is guaranteed by the

due process clause of the Illinois State Constitution. Article I,
Section 2.

Whether facts are determined by the court or by a jury, a case must be
decided

on the merits. Based upon the foregoing, a decision on the merits of a

proceeding is required by Illinois law.

C. Conclusion

Illinois law governing a forcible entry and detainer proceeding

commenced and tried in the circuit court requires that the tenant have
the

opportunity for a pre-eviction hearing in court which provides the basic

elements of due process as defined in 24 CFR § 966.53(c) of the HUD

regulations. This conclusion applies to an ordinary FED action, to a PHA

eviction for drug-trafficking under Ill. Ann. Stat. ch. 10, para. 9-118,
and

to an FED action under the Nuisance Statute.

By virtue of this determination under section 6(k) of the U.S. Housing

Act of l937, a PHA in Illinois may evict a public housing tenant
pursuant to a

circuit court decision in a forcible entry and detainer proceeding. In a

forcible entry and detainer eviction that involves any criminal activity
that

threatens the health, safety, or right to peaceful enjoyment of the
premises

of other tenants or employees of the PHA, or involves any drug-related

criminal activity on or near the public housing premises (including a
PHA

eviction for drug trafficking under Paragraph 9-118 of the FED Statute,
or an

FED action under the Nuisance Statute) the PHA is not required to first
afford

the tenant the opportunity for an administrative grievance hearing.