[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)

Legal Opinion: GCH-0086

Index: 2.245

Subject: PH Due Process Determination

June 2, 1993

DUE PROCESS DETERMINATION

for the

STATE OF OHIO

TABLE OF CONTENTS

ANALYSIS

I. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

III\. Overview of Ohio eviction procedures. . . . . . . . . . . . . . .
. 3

IV\. Analysis of Ohio eviction procedures for each of the regulatory

due process elements. . . . . . . . . . . . . . . . . . . . . . . . 4

A. Adequate notice to the tenant of the grounds for terminating

the tenancy and for eviction

(24 C.F.R. Section 966.53(c)(1)) . . . . . . . . . . . . . . . 4

B. Right to be represented by counsel

(24 C.F.R. Section 966.53(c)(2)) . . . . . . . . . . . . . . . 4

C. Opportunity for the tenant to refute the evidence presented by the

PHA, including the right to confront and cross-examine witnesses

(24 C.F.R. Section 966.53(c)(3)) . . . . . . . . . . . . . . . 5

D. Opportunity to present any affirmative legal or equitable defense

which the tenant may have

(24 C.F.R. Section 966.53(c)(3)) . . . . . . . . . . . . . . . 6

E. A decision on the merits

(24 C.F.R. Section 966.53(c)(4)) . . . . . . . . . . . . . . . 6

V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ANALYSIS

I. Jurisdiction: State of Ohio.

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. 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

C.F.R. Section 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 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 on HUD\'s analysis of the

laws of the State of Ohio to determine if an action for forcible entry
and

detainer (FED action) under those laws requires a hearing with all of
the

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

HUD finds that the requirements of Ohio law governing a FED action in
the

Ohio municipal or county courts under sections 1923.01-1923.15 of the
Ohio

Revised Code (FED statute) include all of the elements of basic due
process,

as defined in 24 C.F.R. Section 966.53(c). This conclusion is based on

requirements contained in the State Constitution, Ohio Revised Code,
Ohio

Rules of Civil Procedure (Civ. R.), Ohio Rules of Evidence (Evid. R.)
and case

law.

III\. Overview of Ohio eviction procedures

In Ohio, an action for unlawful detainer may be brought in county or

municipal court or a court of common pleas. Ohio Rev. Code Ann.

Section 1923.01(A) (Anderson 1992). The Ohio Rules of Civil Procedure
apply

generally to all civil actions. Civ. R. 1(A). The Civil Rules apply to
an

FED action except \"to the extent that they would by their nature be
clearly

inapplicable.\" Civ. R. 1(C).

Article I, section 16 of the Ohio State Constitution states that \"every

person . . . shall have remedy by due course of law.\" The Ohio Supreme
Court

has construed this provision as affording due process protections
equivalent

to those afforded by the United States Constitution. Cody v. Jones, 456
N.E.

2d 813 (1983).

The following analysis shows that Ohio law governing a FED action

requires a pre-eviction hearing which meets all elements of HUD\'s
regulatory

due process definition.

IV\. Analysis of Ohio 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 C.F.R. Section 966.53(c)(1))

A civil action, including a FED action, is commenced by filing a

complaint with the court. Civ. R. 3(A). A civil action complaint must

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

entitled to relief.\" Civ. R. 8(A). In a FED action, the complaint must

\"particularly describe the premises\" and set forth the unlawful
detention.

Ohio Rev. Code Ann. Section 1923.05 (Anderson 1992). Thus, the complaint
must

state the cause of action in sufficient terms to allow the defendant to

prepare a defense.

Pursuant to the FED statute and the Civil Rules, a summons must be
served

on the tenant. Ohio Rev. Code Ann. Section 1923.06(A) (Anderson 1992);
Civ.

R. 4. The summons may not be issued until the complaint has been filed.
Ohio

Rev. Code Ann. Section 1923.05 (Anderson 1992). A copy of the complaint
must

be attached to the summons. Civ. R. 4(B). The summons is prepared by the

Clerk of Courts, and must be in the form specified. Ohio Rev. Code Ann.

Section 1923.06 (Anderson 1992). The summons notifies the tenant of the

opportunity to appear and defend. Civ. R. 4(B). In a FED action, the
summons

must contain the following language printed in a conspicuous manner:

A complaint to evict you has been filed with this court. No person

shall be evicted unless his right to possession has ended and no person

shall be evicted in retaliation for the exercise of his lawful rights .

. . .

Ohio Rev. Code Ann. Section 1923.06(B) (Anderson 1992).

Service of the summons and complaint in accordance with the FED statute

and the Civil Rules provides adequate notice of the FED action, and of
the

grounds for terminating the tenancy and for eviction. Adequate notice is
also

presumably required by Article I, section 16 of the Ohio Constitution,
since

that provision is construed to provide due process protections.

B. Right to be represented by counsel

(24 C.F.R. Section 966.53(c)(2))

The summons in a FED action must inform the defendant of the
defendant\'s

right to employ counsel. Ohio Rev. Code Ann. Section 1923.06(B)
(Anderson

1992). The summons must contain the following language:

You have a right to seek legal assistance. If you cannot afford a

lawyer, you may contact your local legal aid or legal service office.

If none is available, you may contact your local bar association. Id.

Thus, a tenant has the right to be represented by counsel in a FED

action. The due process clause of the Ohio State Constitution also
affords

the right to be represented by counsel. Article I, section 16.

C. Opportunity for the tenant to refute the evidence presented

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

examine witnesses

(24 C.F.R. Section 966.53(c)(3))

The Ohio Rules of Evidence govern court proceedings in a FED action.

Evid. R. 101(A).

All relevant evidence is admissible, except as otherwise provided by the

United States Constitution, the Ohio State Constitution, statute or the
rules

applicable to the Ohio courts. Evid. R. 402. \"Relevant evidence\" is
defined

as \"evidence having a tendency to make the existence of any fact that
is of

consequence to the determination of the action more probable or less
probable

than it would be without the evidence.\" Evid. R. 401.

The tenant has the right to confront and cross-examine witnesses. Ohio

Rule of Evidence 611(B) provides that \"cross-examination shall be
permitted on

all relevant matters and matters affecting credibility.\" In addition,
\"when a

party calls a hostile witness, an adverse party, or a witness identified
with

an adverse party, interrogation may be by leading questions.\" Evid. R.
611(C).

Rule 32 of the Ohio Rules of Civil Procedure permits the use of a

deposition at trial in specified circumstances, but only against a party
who

had an opportunity to appear at the taking of the deposition. This
limitation

is evidently designed to prevent the use of deposition evidence where a
party

has not had the opportunity to confront and cross-examine the witness.
In

addition, the Civil Rules severely limit the purposes for which a
deposition

may be offered at trial. These limitations are intended to restrict the

presentation of evidence by a deponent not present for cross-examination
at

trial. Rule 32(A)(3) explicitly notes \"the importance of presenting the

testimony of witnesses orally in open court.\"

Article I, section 16 of the Ohio State Constitution also appears to

require that a tenant must have the opportunity to refute PHA evidence,
and to

confront and cross-examine witnesses. Such opportunity is a fundamental

aspect of procedural due process in a proceeding to determine whether
the

tenant has a right to remain in an assisted unit. Article I, section 16
of

the Ohio Constitution is construed to provide due process protections

equivalent to the United States Constitution.

Based on the foregoing, a tenant in a FED action has the opportunity to

refute the evidence presented by the PHA, including the right to
confront and

cross-examine witnesses.

D. Opportunity to present any affirmative legal or equitable defense

which the tenant may have

(24 C.F.R. Section 966.53(c)(3))

The FED statue expressly provides that \"any defense\" may be asserted
at

trial. Ohio Rev. Code Ann. Section 1923.06.1 (Anderson 1992). There is
no

restriction on presentation in the FED action of any affirmative defense

available under State landlord and tenant law.

The general rules of pleading under section 8 of the Ohio Civil Rules
are

applicable in a FED action. Rule 8(B) provides without restriction that
a

party shall state the party\'s defenses to each claim asserted. Rule
8(C)

provides that the party may present \"any . . . matter constituting an

avoidance or affirmative defense.\" There are no restrictions under Ohio
law

on the tenant\'s right to raise any affirmative defense in the FED
action,

whether the affirmative defense is equitable or legal in character.

E. A decision on the merits

(24 C.F.R. Section 966.53(c)(4))

An eviction action may be tried before a judge or jury. Ohio Rev. Code

Ann. Sections 1923.09, 1923.10 (Anderson 1992); see also Title VI of the

Civil Rules (Trials). Even if a defendant fails to appear at the trial,
the

plaintiff must present evidence to the court sufficient to prove the

allegations contained in the complaint. Ohio Rev. Code Ann. Section
1923.07

(Anderson 1992). The FED statute provides that whether the trial is to
the

court or to the jury, judgment is entered at the conclusion of the
hearing.

Ohio Rev. Code Ann. Sections 1923.09, 1923.11 (Anderson 1992).

If the facts are tried to a jury, the court must instruct the jury on
the

law. Civ. R. 51(A). When questions of fact are tried by the court
without a

jury, the court must, at the request of a party, state in writing
separate

conclusions of fact and of law. Civ. R. 52. As in the FED statute, the
Civil

Rules provide that judgment is entered after the trial. Civ. R. 58.

The specific provisions noted above, as well as the general structure of

the FED statute, the Civil Rules and the Rules of Evidence, clearly
imply that

the purpose of the trial is a just determination on the facts and law as
found

by the court. As noted above, the purpose of the evidence rules \"is to

provide procedures for the adjudication of causes to the end that the
truth

may be ascertained and proceedings justly determined.\" Evid. R. 102.

A just determination on the merits is also required by Article I,

section 16 of the Ohio Constitution.

V. Conclusion

Ohio law governing a FED action in the municipal or county courts

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
C.F.R.

Section 966.53(c) of the HUD regulations.

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

l937, a PHA in Ohio may evict a public housing tenant pursuant to a
municipal

or county court decision in a FED action, for 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 for any drug-related
criminal

activity on or near the premises. The PHA is not required to first
afford the

tenant the opportunity for an administrative hearing on the eviction.