[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-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

[Link to
GCH-0022](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0022LOPS.doc)

Legal Opinion: GCH-0026

Index: 2.245

Subject: PH Due Process Determination: Arizona

December 3, 1991

Honorable Fife Symington

Governor of Arizona

Phoenix, Arizona 85007

Dear Governor Symington:

I am happy to advise you of a new public housing \"due

process determination\" for the State of Arizona.

Under Federal law, if the Secretary of the Department of

Housing and Urban Development (HUD) determines that law of the

jurisdiction requires a pre-eviction court hearing with the

basic \"elements of due process\" (42 U.S.C. 1437d (k), as amended

in 1990), a public housing agency (PHA) is not required to

provide an administrative grievance hearing before evicting a

public housing tenant for:

1\. 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

2\. Any drug-related criminal activity on or near such

premises.

In accordance with the law, HUD has recently issued a

regulation which revises HUD\'s definition of due process

elements at 24 CFR 966.53(c) (56 Federal Register 51560,

October 11, 1991).

Pursuant to the revised regulation, HUD has determined that

the law governing a forcible entry and detainer action in the

Arizona justice or superior court requires that the tenant have

the opportunity for a pre-eviction hearing in court containing

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

the HUD regulations. The basis of this determination is

explained in the legal analysis enclosed with this letter.

In accordance with HUD\'s determination, a PHA operating

public housing in the State of Arizona may exclude from its

administrative grievance procedure any grievance concerning an

eviction or termination of tenancy which 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 any drug-related criminal activity on or near such

premises.

When a PHA evicts a tenant pursuant to a Arizona forcible

entry and detainer action in Arizona justice or superior court

2

for the reasons set forth above, the PHA is not required to

afford the tenant the opportunity for an administrative hearing

on the eviction under 24 CFR Part 966, and may evict a public

housing tenant pursuant to a decision in such judicial action.

Very sincerely yours,

Jack Kemp

Enclosure

DUE PROCESS DETERMINATION

FOR THE

STATE OF ARIZONA

TABLE OF CONTENTS

I. Jurisdiction

II\. Elements of Due Process

III\. Overview of Arizona Eviction Procedures

IV\. Anlysis of Arizona Eviction Procedures for

Each of the Regulatory Due Process Elements

V. Conclusion

ANALYSIS

I. Jurisdiction: State of Arizona.

II\. Elements of Due Process.

Section 6(k) of the United States Housing Act of 1937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), 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 including the right to confront

and cross-examine witnesses and to present any

ARIZONA DUE PROCESS DETERMINATION

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 Arizona to

determine if a forcible entry and detainer (FED) action under

those laws requires a hearing which comports with all of the

regulatory \"elements of due process,\" as defined in 966.53(c).

HUD finds that the requirements of Arizona law governing a

FED action in the justice or superior court under Title 12,

Chapter 8, Article 4 of the Arizona Revised Statutes (ARS),

sections 12-1171 to 12-1183 include all of the elements of basic

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

III\. Overview of Arizona Eviction Procedures.

In Arizona, a tenant may be evicted by a FED action before a

justice of the peace or before the superior court. The justices

of the peace have jurisdiction concurrent with the superior court

where the rental value and damages are under specified statutory

limits. ARS 22-201.C.

A FED action lies against a person who remains in possession

after termination of the lease (ARS 12-1173.1) or after the lease

term (ARS 12-1171.3). A public housing landlord may commence a

FED action for nonpayment of rent or other violation of the

lease. ARS 33-361.A.1 The complaint in a FED action is filed

1Arizona has adopted the basic provisions of the Uniform

Residential Landlord and Tenant Act. Title 33, Chapter 10 (ARS

33-1301 to 33-1376). This statute specifically provides that

occupancy or operation of public housing are not covered. ARS

33-1308.7. See City of Phoenix v. Bellamy, 153 Ariz. 363, 365,

736 P.2d 1175, 1177 (App. 1987). However, \"all landlord-tenant

relationships\" excluded from the Uniform Act are governed by

separate requirements stated in Chapter 3 of Title 33 of the

ARS. ARS 33-381. Since public housing is not covered by the

Uniform Act, it appears that public housing is covered by the

separate set of landlord-tenant requirements in Chapter 3. For

cases covered by Chapter 3, section 33-361 sets forth provisions

concerning the basis of an FED action (ARS 33-361.A), and

(continued\...)

2

ARIZONA DUE PROCESS DETERMINATION

by the landlord with the justice of the peace or clerk of the

superior court. ARS 12-1175.A. Filing of the complaint is

commencement of the action. Arizona Rules of Civil Procedure

(ARCP) Rule 3. After the complaint has been filed, a summons is

issued. The FED summons is issued by the court no later than the

next judicial day after filing. ARS 12-1175.A.

For public housing, a FED action is tried not less than five

nor more than thirty days after filing of the summons. ARS 33-

361.B. Pursuant to the general requirements of a FED action, the

summons is served at least two days before trial. ARS 12-1175.C.

For good cause, the trial may be postponed for up to three days

in a justice court or ten days in a superior court. ARS 12-

1177.C.

A public housing eviction action is commenced, conducted and

governed as provided for other FED actions. ARS 33-361.B. On

trial of the FED, the only issue to be heard is the right of

actual possession, and the merits of title may not be considered.

ARS 12-1177.A. If the decision is for plaintiff, the court gives

1(\...continued)

concerning how such an action is to be conducted and tried (ARS

33-361.B). Section ARS 33-361.B provides that \"the action shall

be commenced, conducted and governed as provided for actions for

forcible entry and detainer, and shall be tried not less than

five nor more than thirty days after its commencement.\"

Chapter 3 is an overlay to the ordinary requirements for

eviction under the FED statute. So far as relevant to our

analysis, we have not discovered any contradiction between

eviction requirements under Chapter 3, and requirements of the

basic FED statute at Title 12, Chapter 8, Article 4.

Pursuant to section ARS 33-361.A, a landlord may either

\(1\) re-enter and take possession, or (2) without formal demand

or re-entry, commence an action for recovery of the premises.

The first of these alternatives appears to authorize the owner

to take possession by self-help, without a prior judicial

determination. HUD\'s due process determination does not apply

to a self-help repossession of the premises. The due process

determination applies only to recovery of possession by the PHA

through a judicial FED action for recovery of the premises.

3

ARIZONA DUE PROCESS DETERMINATION

judgment for restitution of the premises. ARS 12-11782.

The FED proceeding is subject to special procedural

requirements in the FED statute (such as the provision that a

case is assigned for trial on the day the defendant is required

to respond to the summons (\"return day\") ARS 12-1175.C).

However, in other respects the FED action \"shall be docketed and

tried as other civil actions\" (ARS 12-1176.D).

A civil action in the superior court, including a FED

action, is subject to the Arizona Rules of Civil Procedure

(ARCP). ARCP Rule 1. However, in a FED action in superior

court, special requirements of the FED statute control over

inconsistent provisions of the ARCP. In Hinton v. Hotchkiss,

65 Ariz. 110, 174 P.2d 749 (1946), the Arizona Supreme Court held

that procedural remedies in the FED statute were not superseded

by adoption of inconsistent provisions in the rules of civil

procedure (174 P.2d 749 (1946)).

Where the FED action is tried in a justice court, the

procedure and practice are subject to \"the law governing

procedure and practice in the superior court so far as applicable

and when not otherwise specially prescribed.\" ARS 22-211. Thus

the FED action in justice court, as in superior court, would be

subject to the ARCP as modified by requirements of the FED.

However, the operation of the FED and ARCP requirements may be

modified by additional requirements \"otherwise specially

prescribed\" for a justice court action.

The Arizona State Constitution (Article 2, Section 4)

contains the same due process clause as the United States

Constitution:

No person shall be deprived of life, liberty, or property

without due process of law.

The Arizona due process requirement \-- like the Federal due

process requirements under the Fifth and Fourteenth Amendments

\-- assures that property is not taken by governmental authority

2Where the action is commenced in justice court, the

defendant has the right to appeal to the superior court upon

filing of a bond in an amount fixed by the court. ARS 12-1179.

It appears, though not stated in the FED statute, that there

is a de novo hearing on appeal to the superior court.

4

ARIZONA DUE PROCESS DETERMINATION

without notice and an opportunity for a hearing (Landgraff v.

Wagner, 26 Ariz. App.49, 546 P.2d 26, 31 (App. 1976)).

IV\. Analysis of Arizona Eviction Procedures for Each of the

Regulatory Due Process Elements.

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction (24 CFR

966.53(c)(l)).

A plaintiff commences a FED action by filing a complaint

with the clerk of the superior court or a justice of the peace.

ARS 12-1175.A; ARCP Rule 3. A summons is issued by the court (no

later than the next judicial day). ARS 12-1175.A; see ARCP Rule

4(a). The summons and complaint must then be served together on

the defendant. ARCP 4(d), see ARS 12-1175.C. Procedures for

service are prescribed by the ARCP. ARCP Rule 4(c) and 4(d).

Pursuant to the FED statute, the complaint must describe the

property claimed by the plaintiff, and also state the \"facts

which entitle the plaintiff to possession and authorize the

action.\" ARS 12-1175.B. In addition, pursuant to the ordinary

civil pleading requirements of the ARCP, the complaint must

contain \"a short and plain statement of the claim showing that

the pleader is entitled to relief.\" ARCP Rule 8(a).2. The

statement of plaintiff\'s claim under both the FED statute and the

civil rules constitutes a statement of the \"grounds\" for

eviction.

Notice of the grounds for eviction is also required by the

due process clause of the Arizona Constitution (Article 2,

Section 4).

The summons and complaint required by Arizona law provide

adequate notice to the defendant of the plaintiff\'s lawsuit and

claim for possession, of the opportunity to appear and present a

defense, and of the grounds of the landlord\'s claim.

B. Right to be represented by counsel (24 CFR

966.53(c)(2)).

Many provisions of the ARCP refer to the role of counsel,

and assume therefore that the parties have a right to be

represented. E.g., ARCP Rule 5(e) (appearance by attorney in

action), Rule 80(a) (conduct of counsel), Rule 80(e)

(responsibility of counsel), Rule 5(c).1 (service on party

represented by attorney); see also Rules 16, 26(b)(3), 39(a),

5

ARIZONA DUE PROCESS DETERMINATION

39(b)(2), 51(d).3 The opportunity to be represented by counsel

is required by the due process clause of the Arizona

Constitution. Article 2, Section 4.

C. 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 FED action is \"docketed and tried as other civil actions.\"

ARS 12-1176.D. As in other civil trials, testimony of witnesses

must be taken \"orally in open court\" (unless otherwise

specifically permitted by the civil rules or the Arizona rules of

evidence). ARCP Rule 43(f). The rules are designed to assure

that parties have the opportunity to confront and cross-examine

witnesses. The rules do not limit the right of a defendant,

including a defendant threatened with eviction in a FED action,

to impeach or contradict the plaintiff\'s evidence by argument,

evidence or cross-examination.

At a trial or hearing, a pre-trial deposition may only be

used against a party who had the opportunity to be present at the

taking of the deposition. ARCP Rule 32(a). At taking of a

deposition, the witness may be cross-examined in the same manner

as permitted at trial. ARCP Rule 30(c). A deposition may only

be used at trial in specific and restricted circumstances stated

in the rules. ARCP Rule 32(a). Provisions which allow the use

of a deposition at trial under \"exceptional circumstances\" note

the \"importance of presenting the testimony of witnesses orally

in open court.\" ARCP Rule 32(a)(3).

At trial, a witness may be cross-examined on any relevant

matter. ARE Rule 611(b). Although the court may exercise

\"reasonable control over the mode and order of interrogating

witnesses and presenting evidence,\" this control is intended to

\"make the interrogation and presentation effective for the

ascertainment of the truth.\" ARE Rule 611(a). A party\'s

attorney may conduct examination of a witness. ARCP Rule 43(d).

Ordinarily, leading questions are permitted on cross-examination.

ARE Rule 611(c).

A witness must have personal knowledge of the matter which

is the subject of testimony (other than opinion testimony by

3For an action in the small claims division of justice

court, there is no statutory right to representation by counsel.

ARS 22-512.B.1. However, the small claims division does not have

jurisdiction over actions for unlawful detainer. ARS 22-503.B.3.

6

ARIZONA DUE PROCESS DETERMINATION

expert witnesses). ARE Rule 602. The defendant may seek to

refute the credibility of plaintiff\'s witnesses. The credibility

of a witness may be attacked by any party. ARE Rule 607. The

credibility of a witness may be impeached by evidence concerning

the witness\'s character or conduct. ARE Rule 608; cf. also Rule

609 (impeachment by evidence of conviction of crime); Rule 613

(examination or evidence concerning prior statement by witness).

A party may cross-examine an unwilling, hostile or biased witness

by leading questions. ARE Rule 611(c). A party may call and

cross-examine an adverse party or a witness whose interests are

identified with an adverse party. Id.

A defendant-tenant also has the right to present evidence

and witnesses to refute the case presented by the PHA, subject to

reasonable judicial control as to the \"mode and order\" for

presentation of evidence. ARE Rule 611(a). Generally, all

relevant evidence is admissible. ARE Rule 402. Relevant

evidence may only be excluded on grounds of prejudice, confusion

or waste of time. ARE Rule 403. A party may compel attendance

of witnesses, or production of documentary evidence, by arranging

issuance of a subpoena. ARCP Rule 45. A subpoena requiring

attendance of a witness at trial must be issued by the clerk of

court at a party\'s request. ARCP Rule 45(f).

The foregoing amply shows that the tenant has a full

opportunity under the Arizona rules of evidence and civil

procedure to refute evidence presented by the PHA. In addition,

the opportunity to refute evidence and to cross-examine witnesses

is required by the due process clause of the Arizona

Constitution. Article 2, Section 4.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have (24 CFR

966.53(c)(3)).

At trial of the FED action, the defendant may present any

defense to the plaintiff\'s claim, comprising any arguments, or

evidence of any facts, which may be offered to defeat the

plaintiff\'s claim to possession of the property. See Cottonwood

Plaza Associations v. Nordale, 132 Ariz. 228, 232, 644 P.2d 1314,

1318 (1982) (in a FED action a tenant may raise any affirmative

defense that goes to the issue of the right to possession).

Nothing in the Arizona law limits the character of the defenses

which may be raised by the FED defendant, which therefore include

any available defense to the plaintiff\'s claim for possession.

As in other civil actions, the defendant must file and serve

an answer to the complaint. ARCP Rule 7(a). The answer must

7

ARIZONA DUE PROCESS DETERMINATION

state any defenses to claims asserted in the complaint. ARCP

Rule 8(b). The Arizona law enumerates certain \"affirmative

defenses,\" which must be specifically pleaded by a defendant.

ARCP Rule 8(d). All of these affirmative defenses may be pleaded

by the defendant in a FED action.

Under the Arizona civil rules, there is only one form of

civil action. ARCP Rule 2. The Arizona civil rules govern all

civil suits \"whether cognizable as cases in law or in equity.\"

ARCP Rule 1. There is no restriction on the ability to plead or

present either equitable or legal defenses in a FED or other

civil action.

E. A decision on the merits (24 CFR 966.53(c)(4)).

Under the Arizona FED statute, a judgment for the plaintiff

for restitution of the premises is granted \"if the defendant is

found guilty.\" ARS 12-1178.A. However, judgment must be given

for the defendant against the plaintiff \"if the defendant is

found not guilty.\" ARS 12-1178.B. These provisions signify that

a judgment of restitution may only be granted upon a finding by

the court that the plaintiff is entitled to possession upon the

law and facts as presented in the case. Such a finding

constitutes a decision on the merits as required by HUD\'s due

process definition.

Under the Arizona civil rules, issues in a case may be

determined by the court or by a jury. ARCP Rules 38 and 39; see

also Rules 47 to 52. If tried to a jury, the jury\'s

determination of issues is based on the court\'s instructions of

law. Cf. ARCP Rule 51(a). If tried to the court, the

determination is based on the court\'s findings of fact and

conclusions of law. ARCP Rule 52(e). In either case, the

decision is based on the facts and the law, and is therefore a

decision on the merits. The incidents of litigation procedures

under the Arizona civil rules and rules of evidence are intended

to lead to a just determination on the merits of the issues

framed by the complaint and answer. The ARCP are \"construed to

secure the just . . . determination of every action.\" ARCP Rule

1\. Similarly, the Arizona evidence rules are designed \"to the

end that the truth may be ascertained and proceedings justly

determined.\" ARE Rule 102.

The right of litigants to a decision on the merits is also

guaranteed by the due process clause of the Arizona Constitution.

Article 2, Section 4.

8

ARIZONA DUE PROCESS DETERMINATION

V. Conclusion.

Arizona law governing a FED proceeding commenced and tried

in justice or in superior 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.

By virtue of this determination by HUD under section 6(k) of

the U.S. Housing Act of 1937, a PHA in Arizona may evict a public

housing tenant pursuant to a justice or superior court decision

in a FED proceeding, and is not required to first afford the

tenant the opportunity for an administrative hearing on a FED

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 any drug-related

criminal activity on or near such premises.

9