# Lindsey v. Normet/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Brennan
MR. JUSTICE DOUGLAS, dissenting in part.

## I

I agree with the Court that the double-bond provision in the Oregon eviction statute denies tenants who are affected by forcible entry and wrongful detainer [p80] procedures (called FED) that equal protection guaranteed against state action by the Fourteenth Amendment.
The ordinary or customary litigant who appeals must file a bond with one or more sureties covering "all damages, costs and disbursements which may be awarded against him on the appeal." To obtain a stay of execution pending the appeal the undertaking must also provide: (1) if the suit is for recovery of money or personal property (or its value), that the appellant will satisfy the claim if he loses the appeal and (2) if the judgment is for the recovery of possession of real property, for a partition or for the foreclosure of a lien, that during possession the appellant will not commit waste and that if he loses the appeal, he will pay the value of the use of the property during the appeal.
By contrast, if a tenant in an FED action appeals, he must give "in addition to the undertaking now required by law upon appeal" an undertaking with two sureties for payment of twice the rental value of the premises from the commencement of the action until final judgment.
The more onerous requirement placed on tenants is said to be a guarantee that rent pending appeal will be paid. Scales v. Spencer, 246 Ore. 111, 424 P. 2d 242. Yet the general appeal statute would give that protection.
[p81] It is said that the landlord deserves protection for waste or damages pending appeal. Ibid. But that protection is also provided under the general appeal statute.
It is said that a double-rent bond protects the landlord against possible waste or damage which occurs prior to, not during, the appeal. But the same reason would be germane to waste or damage in other suits brought to obtain possession of property. Drawing the line between the present suits to obtain possession and other suits and saddling tenants with double-rent bonds but not saddling other owners with such bonds seems to me obviously an invidious discrimination.
It is said that the double-rent bond is designed to prevent frivolous appeals taken for the sole purpose of delaying eviction as long as possible. Ibid. Yet frivolous appeals could as well be taken by defendants whose lien is being foreclosed and who desire to remain in possession. It is an invidious discrimination at which the Equal Protection Clause is aimed for a legislature to select one class of appellants who seek to retain possession of property and place a more onerous condition on their right to appeal than is placed on other like appellants.
In sum, the double-bond procedure is landlord legislation, not evenly weighted between his proprietary interest in the property and the rights of the tenants. Over a third of our population lives in apartments or other rented housing. The home—whether rented or [p82] owned— is the very heart of privacy in modern America. MR. JUSTICE MARSHALL in Hall v. Beals, 396 U.S. 45, 52 (dissenting), spoke of the protection afforded "fundamental interests" when it came to classifications made by legislatures. In that case it was the franchise. Race is in the same category (McLaughlin v. Florida, 379 U.S. 184); so are wealth (Douglas v. California, 372 U.S. 353; Harper v. Virginia Bd. of Elections, 383 U.S. 663); procreation (Skinner v. Oklahoma, 316 U.S. 535); and interstate travel (Shapiro v. Thompson, 394 U.S. 618). Classifications that burden, impinge, or discriminate against such fundamental interests are "highly suspect." McDonald v. Board of Elections, 394 U.S. 802, 807.
Modern man's place of retreat for quiet and solace is the home. Whether rented or owned, it is his sanctuary. Being uprooted and put into the street is a traumatic experience. Legislatures can, of course, protect property interests of landlords. But when they weight the scales as heavily as does Oregon for the landlord and against the fundamental interest of the tenant they must be backed by some "compelling... interest," Kramer v. Union School District, 395 U.S. 621, 627. No such "compelling... interest" underlies this statutory scheme.
The double-rent bond required of tenants, but not required of others in possession of real estate, is properly held to be unconstitutional by reason of the Equal Protection Clause of the Fourteenth Amendment.

## II

I cannot agree, however, that the remainder of Oregon's FED Statute satisfies the requirements of due process of law.
[p83] I am satisfied that the Court properly addresses itself to the remaining questions rather than requiring appellants, who are already destitute, to start litigation all over in the Oregon state courts. The three-judge court that decided this case is a panel of distinguished Oregon lawyers and judges. Judge Goodwin came to the District Court from the Supreme Court of Oregon. Judge Solomon has practiced and sat in Portland, Oregon, for years. Judge Kilkenny was a well-known practitioner in Pendleton, Oregon, before coming to the federal bench. These men have their roots deep in Oregon law and are by no means outsiders unfamiliar with it. On local-law questions we have long deferred to federal judges who have come from law practice in a State whose local law is at issue in a federal case. See MacGregor v. State Mutual Co., 315 U.S. 280, 281; Huddleston v. Dwyer, 322 U.S. 232, 237; Bernhardt v. Polygraphic Co., 350 U.S. 198, 204; Magenau v. Aetna Freight Lines, 360 U.S. 273, 281 n. 2 (Frankfurter, J., dissenting).
This is a most appropriate occasion to honor that tradition. While there are occasional appropriate cases for abstention (see Reetz v. Bozanich, 397 U.S. 82), this Court's abstention doctrine that requires litigants to start all over again in a state court after having financed their course all the way to this Court is likely to exhaust only the litigants.
This all-Oregon panel said on the abstention issue:
   "It is unlikely that an application of state law would change the posture of the federal constitutional issues. No state administrative process is involved. The case has been thoroughly briefed and argued on the merits, and is presented on a clear and complete record. It is ripe for decision. Only one appeal (to the United States Supreme Court) will now be needed to settle the federal constitutional question. While the state courts are also capable of [p84] applying the United States Constitution to a challenged state law, two levels of appeal would be needed in an F.E.D. case within the state system. A final state-court decision would still not necessarily settle the federal constitutional question.
   "Closely related to the time element is economy. Cases of this sort tax both courts and counsel. Until finally resolved, these cases produce expense, uncertainty, and frustration. Delay produces no balancing benefit, either of comity or of clarity in state-federal relations."
Agreeing with that view, I come to the remaining constitutional issues.
In my view, there are defects in the Oregon procedures which go to the essence of a litigant's right of access to the courts, whether he be rich or poor, black or white.
The problems starts with Judge Wright's statement in Javins v. First National Realty Corp., 138 U.S. App. D.C. 369, 428 F. 2d 1071, 1074:
   "When American city dwellers, both rich and poor, seek 'shelter' today, they seek a well known package of goods and services—a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance."
This vital interest that is at stake may, of course, be tested in so-called summary proceedings. But the requirements of due process apply and due process entails the right "to sue and defend in the courts," a right we have described as "the alternative of force" in an organized society. Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148. In essence the question comes down to motive and an opportunity to defend. Armstrong v. Manzo, 380 U.S. 545; Mullane v. Central Hanover Trust Co., 339 U.S. 306.
[p85] Oregon gives the tenant "not less than two or more than four days" after service of summons to go to trial. If service is on a Friday, trial could be on the following Monday. There can be no continuance for more than two days "unless the defendant... gives an undertaking... with good and sufficient security" covering the rent which may accrue during the trial.
For slum tenants—not to mention the middle class—this kind of summary procedure usually will mean in actuality no opportunity to be heard. Finding a lawyer in two days, acquainting him with the facts, and getting necessary witnesses make the theoretical opportunity to be heard and interpose a defense a promise of empty words. It is, indeed, a meaningless notice and opportunity to defend. The trial is likely to be held in the presence of only the judge and the landlord and the landlord's attorney.
Moreover, even for tenants who have been lucky to find a lawyer, the landlord need only plead and prove the following items in order to win a judgment: (1) a description of the premises, (2) that the defendant is in possession of the premises, (3) that he entered upon them "with force," or unlawfully holds them "with force," and (4) that the plaintiff is entitled to possession.
[p86] Affirmative defenses such as the failure of the landlord to make repairs or that the motivation for the eviction was retaliation for a report by the tenant of a violation of a housing code are apparently precluded. This reflects the ancient notion that a lease is a conveyance of an "estate in land," in which the respective covenants—a tenant's to pay rent, the landlord's to repair—were deemed independent of each other. This approach was appropriate in the feudal culture in which property law evolved. But this feudal notion of landlord-tenant law—rooted in the special needs of an agrarian society—has not been a realistic approach to [p87] landlord-tenant law for many years, and has been replaced by what eminent authorities have described as "a predominantly contractual" analysis of leasehold interests. This led Judge Wright in Javins v. First National Realty Corp., 138 U.S. App. D.C., at 373, 428 F. 2d, at 1075, to hold "that leases of urban dwelling units should be interpreted and construed like any other contract." Oregon takes the same view and treats a lease as a contract. Wright v. Baumann, 239 Ore. 410, 398 P. 2d 119; Eggen v. Wetterborg, 193 Ore. 145, 237 P. 2d 970.
The Housing Code of Portland, Oregon, has as its declared purpose the protection of the life, health, and welfare of the public and of the owners and occupants of residential buildings It forbids anyone to use or permit a building to be used in violation of its provisions. Id., § 8-204.
[p88] We do not know what Oregon would hold if a lease in violation of a housing code was before it in an FED case. But if the lease is a contract, then the opportunity to be heard would certainly embrace the issue of legality, if due process is to have any real significance. Oregon's statutory FED scheme is plainly to protect landlords against loss of rental income during lengthy litigation. See Menefee Lumber Co. v. Abrams, 138 Ore. 263, 5 P. 2d 709, Friedenthal v. Thompson, 146 Ore. 640, 31 P. 2d 643. But that no justification for denial to tenants of due process, as there are other less drastic devices for protecting the landlord. Judge Wright in the Javins case, 138 U.S. App. D.C., at 381 n. 67, 428 F. 2d, at 1083 n. 67, proposed "an excellent protective procedure" in the form of a requirement that the tenant, who raises an affirmative defense based on housing code violations or other discriminatory landlord practices, pay rent into court as it became due. See also Bell v. Tsintolas Realty Co., 139 U.S. App. D.C. 101, 430 F. 2d 474. The District Court in the present case employed a similar procedure.
Appellees assert that the affirmative defenses mentioned are not relevant to the issues posed under Oregon's FED Act. They represent to us that the Oregon judges at the trial level have usually held that such defenses are not relevant, though the Oregon Supreme Court has not considered the question. What Oregon will hold or should hold is not the issue. Since, however, Oregon holds that a lease is a contract, all defenses [p89] relevant to its legality and its actual operation would seem to be within the ambit of the opportunity to be heard that is embraced within the concept of due process, at least until the issues been resolved to the contrary.
The Court suggests that landlord-tenant law raises no federal questions. This is not quite so clear to me. We have held that the right to complain to public authorities is constitutionally protected. In re Quarles, 158 U.S. 532. If a defendant in an FED action is denied the right to assert as a defense the claim that he is being evicted, not for the nonpayment of rent, but because he exercised his constitutional right to complain to public officials about the disrepair of his apartment, a substantial federal question would be presented. See Edwards v. Habib, 130 U.S. App. D.C. 126, 129-137, 397 F. 2d 687, 690-698 (1968).
The Court also implies that to find for appellants in this case, we would have to hold, as a matter of constitutional law, that a lease is required to be interpreted as an ordinary contract. But this is not at all necessary. Oregon has already adopted the modern, contractual view of leasehold analysis. The issue that confronts the Court is not whether such a view is constitutionally compelled, but whether, once Oregon has gone this far as a matter of state law, the requirements of due process permit a restriction of contract-type defenses in an FED action. Cf. Shapiro v. Thompson, 394 U.S., at 627 n. 6; Sherbert v. Verner, 374 U.S. 398, 404-406.
Normally a State may bifurcate trials, deciding, say, the right to possession in one suit and the right to damages in another. See Bianchi v. Morales, 262 U.S. 170; American Surety Co. v. Baldwin, 287 U.S. 156.
But where the right is so fundamental as the tenant's claim to his dome, the requirements of due process should be more embracing. In the setting of modern urban [p90] life, the home, even though it be in the slums, is where man's roots are. To put him into the street when the slum landlord, not the slum tenant, is the real culprit deprives the tenant of a fundamental right without any real opportunity to defend. Then he loses the essence of the controversy, being given only empty promises that somehow, somewhere, someone may allow him to litigate the basic question in the case.
Bianchi v. Morales, supra, which sanctioned the bifurcated trial in the rural setting of Puerto Rico, where the contest was between mortgagor and mortgagee, would be an insufferable addition to the law of the modern ghetto.
A judgment obtained by the landlord, whether by default or otherwise, gives him the right to levy on the goods of the tenant to recover the costs and disbursements of the suit. Moreover, any past waste or damages, which are covered by the appeal bond, are not an issue in litigation in FED cases. As noted, the issues in Oregon FED cases are limited and the proceedings summary. Making the tenant liable for past waste or damage through the device of an appeal bond when he has no real opportunity to defend is a manifest denial of due process.
I dissent from an affirmance of this judgment.

## Notes

* ↑ Ore. Rev. Stat. § 19.040 (1).
* ↑ Id., § 105.160.
* ↑ The general appeal statute (Ore. Rev. Stat. § 19.040 (1)), however, applies only to appeals from the trial court of general jurisdiction (circuit court). FED actions may be brought in the circuit court, Ore. Rev. Stat. § 105.110, but are also within the jurisdiction of the district and justice of the peace courts—courts of limited jurisdiction. Ibid. A litigant may appeal from these courts to the circuit court, Ore. Rev. Stat. § 46.250, in which case trial is had de novo, and may stay an advance decision pending appeal by giving an undertaking, with one or more sureties, that he will pay all costs and disbursements against him awarded on the appeal, and that he will satisfy any judgment that might be entered against him by the appellate court. Ore. Rev. Stat. § 53.040. Appellees argue that the undertaking provided for by Ore. Rev. Stat. § 53.040 is inadequate to protect landlords' rights. The answers are two. First, the landlord has the prerogative to bring suit in the circuit court, should he desire the greater protection of the general appeal statute. Second, the legislature could provide that the general appeal statute apply to FED actions brought in the district, as well as circuit, courts.
* ↑ 1970 Census of Housing, Advance Report HC (V. 1), p. 11.
* ↑ The "rational" relationship test applied to strictly economic or business interests (United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6; McDonald v. Board of Elections, 394 U.S. 802 is not germane here.
* ↑ Ore. Rev. Stat. § 105.135.
* ↑ Id., § 105.140.
* ↑ The majority stresses the "fact" that a tenant may have up to six days to prepare for the trial. But as of right, the statute guarantees only two. While various discretionary actions may result in a tenant's having the full six days, "[t]he right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion." Roller v. Holly, 176 U.S. 398, 409.
* ↑ Ore. Rev. Stat. § 105.125.
* ↑ Id., § 105.145.
* ↑ "Unlawful holding by force" id defined by Ore. Rev. Stat. § 105.115 to occur in the following circumstances: (1) if a tenant "fails or refuses to pay rent within 10 days after it is due" pursuant to a lease or agreement, (2) if he fails or refuses "to deliver possession of the premises after being in default on payment of rent for 10 days," (3) if he remains in possession after receipt of a statutory notice to quit (see Ore. Rev. Stat. § 105.120) and was holding under an expired lease or was a month-to-month or year-to-year tenant, or (4) if he "is holding contrary to any condition or covenant of the lease" or "without any written lease or agreement."
* ↑ "Under feudal tenure, and in more recent times, in the setting of a largely agrarian society, the tenant rented land primarily for the production of crops. The fact that a building or dwelling stood on the premises was, in the main, incidental, because the major emphasis was on the tenant's right to till the soil for the production of crops to supply him a livelihood. For as long as the tenant rented the land he was the holder of an estate for years; in effect, he was the owner for a limited term. If he wanted to live in comfort, and if a dwelling stood on the land, it was his business to make that dwelling livable, to see to it that the roof was watertight, that the well was in good shape, and that whatever sanitary facilities there were, were adequate. While he was not to commit 'waste'—destruction of the property that would leave it in less productive condition than when he rented it—the owner owed him no obligation to assist in maintaining his buildings in a livable or decent condition. "If anything, the obligation ran the other way, because an intentional or grossly negligent destruction of buildings on the premises might be construed as waste by the tenant. Thus, from its very beginning, the obligation to repair went hand in hand with control. Since the landlord gave up control the premises for the stated term of years of the leasehold, during that term whatever the obligation to repair would rest on the temporary owner, the tenant, rather than on the holder of the reversionary interest, the owner of the fee. Initially, the dependence of the obligation to repair on the capacity to control was retained and applied to non-rural housing as well. Legal Remedies for Housing Code Violations, National Commission On Urban Problems, Research Report No. 14, pp. 110-111 (1968).
* ↑ "The legal rules pertaining to the repair of leaseholds became wholly unreal and anachronistic with increasing urbanization during the 19th century, with the increasing reliance on multi-unit rental property, such as tenement houses, to provide shelter for the urban areas' growing industrial labor population. In an agrarian setting it made sense to require the tenant to keep in good repair an entire dwelling house he had rented from an owner. On the other hand, to require a relatively transient tenant to assume the obligation of repair in a multi-unit building or in a tenement house with respect to his rooms and with respect to plumbing, heating, and other fixtures that were interconnected with other parts and fixtures in the building made no sense at all." Id., at 111-112.
* ↑ R. Powell & P. Rohan, Real Property 179 (1967).
* ↑ Housing Code § 8-102.
* ↑ Oregon's continuance bond, Ore. Rev. Stat. § 105.140, serves the same function: "No continuance shall be granted for a longer period than two days unless the defendant applying therefor gives an undertaking to the adverse party with good and sufficient security, to be approved by the court, conditioned for the payment of the rent that may accrue if judgment is rendered against the defendant."
* ↑ Ore. Rev. Stat. § 105.155.