William H. Rehnquist: Mr. Feldman.
James A. Feldman: Mr. Chief Justice, and may it please the Court: Confronted with the problem, an undisputed problem, of severe violence and drug crimes and other crimes in public housing, Congress enacted the statute at issue in this case. The statute provides that public housing leases must provide that any drug-related criminal activity engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control shall be cause for termination of tenancy. It sets forth the conditions by which the household may possess and occupy Government property, property that is largely financed by the Federal Government. HUD has construed that statute, in accordance with its terms, to authorize termination of the tenancy when the drug-related criminal activity by one of the named persons occurs without regard to the tenant's knowledge or control.
Anthony M. Kennedy: Do you have any question about the respondent's standing to contest the provisions that... of a lease that's made between HUD and the housing--
James A. Feldman: The... what happened in the district court in this case, if I can just answer it this way, is there was a... we suggested that the court should abstain, and this whole thing should be litigated in the local courts in the unlawful detainer action. The court refused to do so on the ground that this was in part an administrative procedure action against HUD and that HUD wouldn't have been a party in the local court. That issue wasn't raised further on appeal and we didn't raise it in our petition for cert. I'm not sure if that answers the question or not, but... in any--
Antonin Scalia: --Is the... is the issue jurisdiction?
James A. Feldman: --No, I don't... I don't think it is jurisdictional. The question about whether there's a cause of action under the APA, for example, is not... is not a jurisdictional issue, nor is abstention. Anyway, HUD has construed the statute in accordance with its terms, to authorize termination of the tenancy when there's drug-related criminal activity regardless of the tenant's knowledge or control. The court of appeals read into the statute a limitation that is nowhere expressed or implied with any of the words that Congress used, that a tenancy may only be terminated when the tenant knew or had reason to know of the drug-related criminal activity. The question--
Antonin Scalia: We read scienter requirements into criminal statutes with some regularity, don't we?
James A. Feldman: --Yes. But there's no... but this is a civil... this is a contract. It's a civil... it's a civil case. It's a civil contract. And the law of contracts historically has been that contractual terms can be violated without regard to any inquiry into the state of mind of the contracting parties.
Antonin Scalia: What... what about other civil forfeiture actions? Are you familiar with any... any others of those that don't contain a scienter requirement?
James A. Feldman: I'm not sure... well, under Federal law, I'm not sure. There is now generally a Federal knowledge... ignorant owner defense under the Federal forfeiture statute.
Antonin Scalia: Was that--
James A. Feldman: State... in the United States... in Bennis against Michigan, I don't think there was such a... there was such a provision. But I think the key point is this is completely different from forfeiture. Forfeiture involves someone who has a property interest that the Government had... has nothing to do with and the Government is given the right to take that property interest. This is a case where the tenants never had a property interest in occupancy of their... of their apartment in violation of the lease. And this is a case in which the Government is saying this is our property and we're going to let you use it under certain... use and occupy it under certain circumstances.
Sandra Day O'Connor: --Is it your position that the Government can place any terms and conditions whatever on leases as long as it doesn't violate some other constitutional provision like the First Amendment?
James A. Feldman: Yes, I think that is our position.
Sandra Day O'Connor: And so this is a condition that the Government has the right to impose. Is that your basic position?
James A. Feldman: That's right. And--
Sandra Day O'Connor: Then you don't need reliance on Bennis at all.
James A. Feldman: --No, no. Our position is this is fundamentally different from forfeiture. Forfeiture involves tens of millions of leasehold and fee interests throughout the country. This involves a... a much narrower slice of property interests in... of... of--
William H. Rehnquist: Whether it involves a narrower or a broader slice really doesn't make any difference. It's just a different kind of relationship.
James A. Feldman: --Right. It's a fundamentally different kind of relationship. This is the Government's property to start off with. It is saying, you can use the property subject to certain conditions.
Anthony M. Kennedy: I guess I'm still... I guess I'm still puzzled by why a tenant can sign a lease and then challenge it. I mean, what's the... is... is he saying that Federal law that binds the housing authority is somehow invalid? And how does he have standing to do that if the housing authority agrees?
James A. Feldman: I think that the tenant's position... I suppose the tenant... you'd have to ask my opponent, but I think the tenant's position here is that this lease provision which embodies the... the HUD rule of... the rule that Congress enacted concerning that there was no innocent owner defense, that that is itself not authorized by Federal law or not permitted by Federal law and therefore was an invalid condition. I assume that that's what their position is.
Sandra Day O'Connor: The position of the Government in... in saying that any misuse by any guest, whether on or off the premises, will result in a forfeiture does seem to operate in a rather draconian fashion in some of the examples we've been given in the briefs. And one wonders why the Government wants to take such a... an extreme position even though it lawfully could.
James A. Feldman: I think most... I would say that most of the examples that are given in... that are given in the amicus briefs supporting respondent are ones that are based on third-hand hearsay, and I'm not sure that they're accurate accounts of those events, but--
Sandra Day O'Connor: Well, but if they are, they sound pretty draconian.
James A. Feldman: --I think the underlying point is that Congress was facing a very serious problem, and it had essentially three choices. It could have said, we are going to have a Federal zero tolerance policy and that's all. It could have done what it did, which is vest local public housing authorities with this tool, a contractual provision that permits them to get people out when there's a serious problem or... or when... when it's necessary to ensure the peaceful enjoyment of the premises by the other tenant. Or it could have adopted a code of under what circumstances you can and can't evict, and then left it up to the... it would be leave... left up to the courts to see whether the particular facts satisfy that code or don't satisfy that code. I think Congress took the only course that was workable. If they... if Congress had gone farther and if Congress had enacted the statute that the court of appeals thinks it enacted, then it would not be much of a tool for public housing authorities because in each case, the question, for example, of the tenant's knowledge would be litigated. The tenant would likely deny knowledge. The household members would deny knowledge. The whole thing wouldn't--
Ruth Bader Ginsburg: Mr. Feldman, how can you say that's so when the district court... the injunction was he's drawing a line between on premises and off premises. And the injunction doesn't cover anything that happens on the premises. As far as that's concerned, the eviction holds. So, it's only the cases where the third person does a drug deal or whatever off premises. And we had one case in the parking lot, another case in a bar. But as far as inside the premises, there is no case being made. There's... nobody is saying that... at least as I understand it, that the district judge didn't go far enough.
James A. Feldman: --That... that's correct. But the problem is that in fact drug-related criminal activity that occurs, for example, in the parking lot of a housing project can be more threatening to the peaceful enjoyment of the premises by the other tenants than what would... might occur in the apartment. And the same with conduct that occurs nearby. I think the point is that Congress was faced with it and public housing authorities were faced with the problem of very serious violence that the court of appeals said that public housing projects in many areas had become war zones and drug markets. And they wanted a... a practical, effective way to be sure that public housing authorities can take those households that are causing the problem and remove them and replace them with other households of the many, many households who are on the waiting list and who wouldn't cause the problems.
Ruth Bader Ginsburg: But you say this is... a housing authority may not must.
James A. Feldman: That's correct.
Ruth Bader Ginsburg: And I think in your brief, as well as in Judge O'Scannlain's opinion for the original panel, there was a suggestion that the housing authority should be equitable in the way it administers it, that it shouldn't evict every time it theoretically could. And my question to you is, in recommending that kind of equitable discretion to be exercised, do you envision that to be an unreviewable discretion or would there be court review of the housing authority's determination, say, in these cases not to exercise equitable discretion?
James A. Feldman: I don't think there would be because I think Congress... the way the scheme works is this is a provision in a lease which is a sort of contract. And there is... the law of contracts is that a contracting party may enforce its lease... its lease provisions... Congress was surely aware of that... when it wants. And ordinarily whether it's a Federal contract, a government contract, or a private contract, the court doesn't inquire into what are the reasons why you're enforcing your... your lease provision here. They just inquire... or your contractual provision. They just inquire has the contract been breached or has it not been breached. And I think again that that was the only workable way for this scheme to work. Now, in some instances, there may be a public housing authority faced with some of the really extreme conditions that came out in congressional hearings and that are discussed throughout the papers here that may decide that a zero tolerance policy is the only way to assure that this... the drugs are going to be cleaned out of the housing unit and that the housing... the households that are causing the problem are going to be replaced with some of the other ones on the waiting list that won't cause the problem.
Ruth Bader Ginsburg: Do I understand--
James A. Feldman: There... there might be other cases where that's not appropriate.
Ruth Bader Ginsburg: --But you did take the position that here and now with this, that the housing authority should not evict automatically, that they should do it on a case-by-case basis. Or am I wrong in saying--
James A. Feldman: I think what... well, you know, I hesitate to say yes to that because I think what... our position is that the housing authority has the discretion to enforce these provisions or not, and there may be cases where zero tolerance policy is necessary or required, in which case that's what they should do.
David H. Souter: --But the discretion is unreviewable and in the... in the final analysis, as I understand your argument, it doesn't have to exercise any discretion at all. It can zero tolerance across the board.
James A. Feldman: They... it could say zero tolerance across the board.
William H. Rehnquist: And if... if you say it's reviewable by the courts, talk about an unworkable system. That would be it.
James A. Feldman: That's correct because you... with respect to the particular issue of knowledge that's at issue here, as I said, it's going to be very hard for a housing authority, which is not a criminal prosecution agency... they're in the business of running housing... housing developments, not prosecuting crimes... to prove who had exactly what state of mind or who had what level of control. Indeed, both respondents in the court of appeals suggest that if the tenant... even if the tenant knew, if the tenant couldn't control the drug-related activity, that that would also be a defense. Well, that would, in some cases, allow exactly the families and the households that are causing the biggest problem for the... for their... for their neighbors and for the truly innocent tenants to remain, and there would be nothing the public housing authority could do. But I think, in general, what Congress wanted was to give public housing authorities a tool that would be actually useful in remedying the very serious problem of not only drug... drug-related criminal activity but other criminal activity in public housing units. The underlying principle really is one of household-wide responsibility. No one... no one suggests that if the... everybody agrees, let me put it that way, that if the tenant is... engages in drug-related criminal activity, that the whole household can be removed from the unit. But in a very real sense, although the legal relationship is between the housing authority and the tenant, the practical relationship is they're giving that whole household the right to occupy the Government premises. And it's just the very same rule. It's whoever in that household has used... has engaged in criminal drug-related activity, that person is liable to be removed from the tenancy because it... that person violated a lease term.
Ruth Bader Ginsburg: Mr. Feldman, how do you answer that the statute doesn't say anything about the duration of time or the place? I mean, the hypothetical that the... let's say the grandson could have dealt with drugs 5 years ago or could have done it in L.A. and this housing project is in Massachusetts.
James A. Feldman: In terms of time, I think that there... generally the statute doesn't say anything about time, and I think it would be open to HUD to fill in a... in a gap, although certainly a very broad period of time would be... would be suggested. It wouldn't be a very short--
Ruth Bader Ginsburg: But you're saying the part of the unreviewable discretion is it could be 5 years ago.
James A. Feldman: --That's... that's correct, but that... that... it was not... the issue of time and place... and let me say place is addressed in the statute because Congress... originally it said on or near, and Congress amended in 1996 to say on or off. So, the one thing we do know is that place is not something that was relevant. And again... actually if I can turn to place for a second, you could have a drug crime that occurs 3,000 miles away, and ordinarily... and I think it would never be... I don't know of any case where anyone has been tried to be evicted. It's a very theoretical possibility that anybody would be. But if that crime was that that person was trying to import drugs and bring them to that person's unit in the housing complex, it would be highly relevant. And what Congress intended was that public housing authorities have the tool to take care of the problems that they saw. They're not evicting people who are... who are engaged in drug crimes 3,000 miles away or 20 years before. Respondents rely and the court of appeals relied on the forfeiture provision. I've already said that the forfeiture raises a completely different issue. And the fact that... it is true that Congress added leasehold interest to the forfeiture statute in it... when it... when it rewrote this statute in 1990, although it didn't substantively change the terms of the statute. But I think the... it's very express innocent owner defense that's in the lease... in the forfeiture statute contrasts very sharply with the absence of not only any such defense but even any word that suggests such a defense in this statute. The doctrine of in pari materia, which they appeal to, can sometimes be used where you have a particular term in a statute that in a closely related statute is either defined or, by context, has a very clear meaning and the same meaning then is... is imported. It's quite a different thing here where... this is a... the forfeiture statute is entirely different from--
William H. Rehnquist: Well, it runs up against expressio unius too, doesn't it--
James A. Feldman: --Right.
William H. Rehnquist: --as a--
James A. Feldman: Right, and... and I think in this case where there's no word in this statute that requires that... that requires interpretation and the context that you're trying to take the meaning from is quite a... an entirely different context, I don't think that that in pari materia is soundly applied. In fact, I think just the contrast between the statutes clearly points out Congress'... what Congress intended. The... the... you know, I'd add that this... this... the rationale of this statute ensures not only that there's the maximum incentive for tenants in public housing to ensure that their household members and they themselves are not engaged in drug-related activity and to find out about that activity rather than remaining ignorant, but in the end, it ensures that households in Government subsidized housing who are a threat to their neighbors or who may be a threat to their neighbors in the view of the public housing authority, that they are removed and that... and replaced with others of the many families who are on the list who would not pose such a threat. Finally, the court of appeals also relied on the doctrine of constitutional avoidance, but this statute is clear and there's no warrant for applying that doctrine. And in any event, there isn't any serious constitutional problem with interpreting it as HUD has. Although the tenants have a property interest in their lease, that is... that entitles them to the right to the full procedural due process protections before the lease is terminated, but it doesn't govern what the substantive terms of the lease are.
William H. Rehnquist: --They can litigate that in the unlawful detainer action.
James A. Feldman: That's right, and they have the right to litigate all of the issues that would come up in the unlawful detainer action, but it doesn't... the... the fact that they have a property interest in their lease doesn't, in turn, give them a property interest in acting in ways substantively that are contrary to the terms of their lease. If there are no further questions, I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Feldman. Mr. Lafayette, we'll hear from you.
Gary T. LaFayette: Mr. Chief Justice, and may it please the Court: In response to Congress' enactment of 1437d(l)(6) and HUD's regulations, the Oakland Housing Authority revised its lease to properly reflect the changes that had taken place with regard to the HUD regulations. And it specifically did that in three instances. It revised the lease at paragraph 9(m) and it revised the occupants' responsibility statement, and then it revised what is known as the tenant agreement to maintain a drug-free environment. In each instance, it... it advised each tenant and requested each tenant to sign a statement acknowledging that they clearly understood that if this type of conduct took place within their apartment or off housing authority property, that they could be subjected to a lease cancellation. In this case, we came forward with four individuals whose leases were canceled because of this particular type of activity. And the housing authority's position is it was necessary for it to take the action with regard to each one of these particular individuals because of the conduct that they were participating in or the conduct of individuals in their households were participating in, which conduct which posed a significant risk of injury to other members of the housing authority and to the community in which these particular developments are located.
Clarence Thomas: Mr. Lafayette, how big a problem is this in this housing authority?
Gary T. LaFayette: It's a... it's a significant problem. One of the things that we've pointed out in our moving... in... in our merits brief was that this is a housing authority that has approximately 8,000 individuals who are scattered in 3,308 low income to moderate income housing units. From 1998 until November of this past year, there were 700 felony arrests for drug-related criminal activity in or near Oakland Housing Authority property. Significantly, between January 1, 2001 and November 6, 2001, the number of felony arrests was 250 for drug-related activity. That's a significant sum. One of the things that I think is also significant is that this is a housing authority that does not necessarily have large housing development complexes. A number of its developments are smaller units. For example, in the Hill and Lee cases, those are individuals who resided in... in a development that is approximately eight units, eight units in a neighborhood that is comprised almost exclusively of single family dwellings. When these individuals participate in this drug activity in the front of that unit, it is not only affecting the members of the housing authority community itself, it is affecting the general community at large and all the individuals there. And significantly we need to point out that we responded there not because we happened to be driving by, but the response was... was premised on a complaint being made. And that's part of the record. So, what's happening is this housing authority is responding to complaints made by residents, and one of the things that we point out is this housing authority has been subjected to litigation by... being made by its residents demanding that the housing authority take more affirmative action and steps to address these issues of drug and drug-related activity. In... it seems to me... to me that there is no issue that in each one of these particular cases there was just cause for the housing authority to go forward and... and to exercise this discretion reasonably and that it did so. And one of the things that... that seems to appear is the question of whether or not it is exercising discretion, and we always point the Court to the case of Pearlie Rucker because that's a case where the housing authority initially proceeded with termination of that lease and, in the process of doing so, came to understand that the individual in the household who was participating in the drug activity, Gelinda Rucker, was a person who had actually become incarcerated and therefore no longer posed a risk of injury to the remainder of the housing authority or the community. Realizing that, the agency at that point discontinued its efforts to dismiss that... to terminate that lease. And at the time this lawsuit was actually filed, there was no longer a pending dispute between the housing authority and Pearlie Rucker who was the... who was the tenant responsible for that lease.
Sandra Day O'Connor: But that was not required of the housing authority, and if they had gone and said, well, we don't care that circumstances have changed, out you go, that would be unreviewable.
Gary T. LaFayette: That would be unreviewable. And the reason for that is the housing authority needs the discretion to act where it believes it is necessary for it to act. And in each one of these instances, this housing authority has come forward with that position. And without that discretion, a housing authority would be strapped to look for and to document events that require it to move or compel it to move or would set some... would meet someone else's satisfaction of when it should move. And those things may not be present from the information that it might have before it. The... and one of the things we think that... that Congress recognized, that housing authorities are not as well equipped as are the Federal Government in order to respond to these types of issues, particularly with regard to the loss of additional funds to cities. With that in mind, it is significant that this housing authority has responded in the way that it has responded. We... we have... have listened to the Solicitor General's discussion this morning, and we are in accord with regard to the position that he has taken with regard to what Congress intended and how Congress went about evaluating the various needs of residents of public housing. One of the things that I think that needs to be clearly stated is that the housing authority itself does not benefit from a statute like this because the housing authority is only going to take that apartment unit and to re-lease that apartment unit out to someone else who is in need of low income public housing. The housing authority has this provision in its lease because, one, there... it's required by the HUD regulations, and number two, it needs to be able to provide its residents with safe and decent housing, which is what this is really all about, is how it goes about providing safe and decent housing.
Anthony M. Kennedy: Do you take the position that you could have this provision in the lease even without the Federal statute?
Gary T. LaFayette: There is nothing that restrains us from putting this provision in this lease before that. And in fact, prior to... though not part of the record, prior to this provision being enacted by Congress, there was a similar provision in the lease itself. It just did not embrace the concept of activity off of housing authority property. The provision was amended after the... after Congress acted.
Ruth Bader Ginsburg: That... that in premises has not... has never been an issue in this case, I take it.
Gary T. LaFayette: In premises has not, but in premises alone does not address the problem with regard to this type of activity in public housing. It's not unforeseeable that individuals who participate in this conduct off premises may not lead those who have issues with them onto housing authority property and thereby jeopardize the interest and the... the right to enjoyment of the other residents. With that, I'll reserve the rest of my time for--
John Paul Stevens: May I ask one question, if you're through? Is there any procedure at all to... I'm pointing... I'm referring to the fact that the housing authority has such broad discretion. They can not only make charges, but they can decide to waive them. Is there any procedure at all to be sure that that power isn't abused by waiving it in cases of all Democrats but enforcing it for all Republicans or something like that?
Gary T. LaFayette: --There... there isn't a procedure in place for anyone to review these decisions based on some arbitrariness standard. No, there isn't.
Antonin Scalia: Well, but I mean, in the precise instance that Justice Stevens gave you, that would be a constitutional violation, wouldn't it?
Gary T. LaFayette: If--
Antonin Scalia: And you... you would have judicial review for... for violation of some constitutional provision.
Gary T. LaFayette: --It's foreseeable if there is a constitutional issue. If, for example, this... this policy is only being used against people of a particular race--
Antonin Scalia: Of course.
Gary T. LaFayette: --then those issues could be reviewable.
Antonin Scalia: Right.
Gary T. LaFayette: But--
Ruth Bader Ginsburg: What? In a 1983 action against the housing authority? Is that what... what would... how would it be?
Gary T. LaFayette: --That could be and it could be a 1983 violation against the housing authority.
David H. Souter: Well, wouldn't it have to be on your view? Wouldn't it have to be in a separate 1983 action on the... on the view that you take?
Gary T. LaFayette: It could be... landlord-tenant disputes in California are summary proceedings which particularly dovetail into the issues in dispute, and it probably would be a separate action as a 1983 claim. But one of the things we don't have here is a claim that says that these individuals are being singled out for lease cancellation because of their race or some other suspect classification. Thank you.
William H. Rehnquist: Thank you, Mr. Lafayette. Mr. Renne, we'll hear from you.
Paul A. Renne: Mr. Chief Justice, may it please the Court: In this case, as we've heard in... in the argument of HUD is that HUD says, by reason of this lease provision, which Congress mandated in section 1437d(l)(6), it is the judge and jury as to whether or not innocent tenants, such as the... the respondents who are before this Court, whether they can be summarily evicted from their homes.
William H. Rehnquist: Well, that doesn't really differ from the role of any landlord in a landlord-tenant situation, does it?
Paul A. Renne: Yes, Your... Chief Justice, it does because what they're saying is that there can be no defenses raised in the eviction proceeding other than an attack on whether or not there was a drug-related violation.
Anthony M. Kennedy: Well, but as the Chief Justice points out, that's true in... I've drafted many leases and we have clauses--
William H. Rehnquist: --Absolutely.
Anthony M. Kennedy: --that this premises is used for commercial purposes.
William H. Rehnquist: Regional eighths.
Anthony M. Kennedy: The lease is void and that's... and that's it. Now, you may say that... you can argue about whether or not the... the provision itself was violated, but I know of no authority where it says where the lessor can't exercise this option.
Paul A. Renne: Justice Kennedy, under most State laws, the eviction court has a right to make a determination whether under all the facts and circumstances to... to terminate the lease would be, for example, a forfeiture because of the violation not being sufficient or the circumstances such as... that don't bring it under those terms. Now, what... and interesting enough, we heard nothing about it, but Congress also mandated--
Anthony M. Kennedy: We just don't have before us a question in which you're contesting that the drug activity occurred.
Paul A. Renne: --Yes, but the Congress mandated that in any action taken to evict, HUD, or the Oakland Housing Authority in this case, had to provide some grievance mechanism of an independent evaluation whether eviction should occur. However, it said that HUD can grant due process exemptions under the circumstances where HUD makes an affirmative determination that the eviction court provides due process to the tenant.
William H. Rehnquist: This wasn't the basis of the Ninth Circuit's decision, was it?
Paul A. Renne: Yes. The... the Ninth Circuit talks in terms of the... of the opportunity to present defenses. Now, what the Ninth Circuit was going on, it was saying that there's nothing in the statute... and it was Congress' intent not to take away an innocent tenant defense. And that would be presented to the eviction court. And Congress has provided for the eviction court to have a right to hear all legal and equitable defenses.
William H. Rehnquist: Well, this doesn't sound to me like the Ninth Circuit's reasoning at all. Perhaps I'm mistaken.
Paul A. Renne: Well, it... it is, Your Honor, if you look at what the Ninth Circuit is saying. The Ninth Circuit is saying that that section does not take away an innocent tenant defense.
Ruth Bader Ginsburg: Where does it come from in the first place?
William H. Rehnquist: Well, where did... exactly. Where did it come from in the first place?
Paul A. Renne: The innocent tenant defense?
William H. Rehnquist: Yes.
Paul A. Renne: From the... the statute which provides that in eviction proceedings, the eviction court shall provide an opportunity for the tenant to present all legal and equitable defenses.
Anthony M. Kennedy: Yes, but the question is whether or not this is a legal defense.
William H. Rehnquist: Yes.
Anthony M. Kennedy: That's the only question before us.
Paul A. Renne: That's correct. And, Your Honor, it is our position that it is a legal defense that is recognized in most State court proceedings.
Sandra Day O'Connor: But it's not recognized in the Federal statute or in the regulations. That's the problem. This is manufactured by the Ninth Circuit. It isn't there.
Paul A. Renne: The... the statute doesn't say anything about defenses. The statute is only saying here's a lease provision that you shall put into the lease. HUD's own regulations say, if you want to enforce it, you have to go to an eviction court, and the eviction court has a right to consider all equitable legal defenses.
Sandra Day O'Connor: But these tenants didn't let it get to that stage. They preempted it and filed some kind of a suit to get an injunction before there had ever been a proceeding.
Paul A. Renne: That's correct. And that was on the point that it was a violation of the... of what power Congress had given HUD to interpret the statute which is totally silent. It says nothing about defenses. And when you look at what happened at the same time when Congress enacted that particular provision in 1988, it was the same time in which it took public housing leases, put them under the forfeiture statute, and said under forfeiture statutes, you must provide an innocent tenant defense.
Antonin Scalia: Why didn't it say that here? I mean, you... this suggests that when Congress said nothing about the defense here, it meant the defense didn't exist. Where it wanted the defense--
William H. Rehnquist: --It put it in.
Antonin Scalia: --it specified it. And you say they say nothing about it. They say nothing about it because it didn't exist.
Paul A. Renne: I... I submit the reason why they didn't is because landlord-tenant law is a... in public housing is a amalgamation of Federal and State law, and that's well recognized in all the cases. They knew, at the time that they passed section 1437d(l)(6), that there was also the provisions that said legal and equitable defenses may be presented. They were not... they were not focusing on what defenses are available.
Antonin Scalia: These provisions are... that say legal and equitable defense can be presented are... appear in Federal law or in State law?
Paul A. Renne: They appear in HUD's regulations. In the... they can only grant a due process exemption if they find that the State eviction court gives the tenant an opportunity to present legal and equitable defenses. Congress, when it was passes... passing section 1437--
Antonin Scalia: And you think this is an authorization for all sorts of defenses?
Paul A. Renne: --Absolutely. Whatever defenses are recognized by the eviction court.
Ruth Bader Ginsburg: Then you are going considerably beyond where the district court left off. And the district court made a distinction between on premises and off premises, and it didn't give any injunction with respect to on premises. Your argument doesn't have that limitation. Your argument is equitable defense of innocence; I didn't know. And it doesn't draw any line at all between in and off premises. So, you are asking this Court to take... to state a rule of law that would go considerably beyond the district court injunction that was then reviewed by the Ninth Circuit. You're asking us, in... in effect, to reverse the district court because it didn't go far enough, if I understand your argument.
Paul A. Renne: I believe you are correct, Justice Ginsburg, that we believe that that defense of a totally innocent tenant should be available whether the offense occurred off or on the premises just as it does in the forfeiture statute.
Ruth Bader Ginsburg: Did you object in the Ninth Circuit because the district court didn't go far enough?
Paul A. Renne: I don't believe so, Your Honor.
Ruth Bader Ginsburg: A very odd procedural posture you're in. You're trying to overturn your victory in the district court.
Paul A. Renne: I'm not trying to overturn it, Your Honor, I suggest, but I would be perfectly happy if this Court addressed just the off premises, which is what the district court held. But the whole--
Ruth Bader Ginsburg: But you say there's no logical line that one could draw. On your... if your theory is innocent tenant is a defense, then how can you defend that defense for off premises only?
Paul A. Renne: --The... the Ninth Circuit didn't draw that line either. The Ninth Circuit took the position that the innocent tenant defense was not precluded and in fact was preserved under that--
Ruth Bader Ginsburg: I thought the Ninth Circuit affirmed the district court's judgment.
Paul A. Renne: --That is correct.
Ruth Bader Ginsburg: And the district court said the... there is no problem with on premises. Off premises is what's unreasonable.
Paul A. Renne: What the district court said is, I'm not going to issue an injunction for on premises. Might I respectfully submit what the court was saying there was that the balancing and the clearness of the likelihood of prevailing was not necessarily clear as he felt it was at the... at the off premises, so that in the context of a preliminary injunction, he did not make a ruling as a matter of law at the end of the day that that... that he would adhere to the position that he was taking for purposes of the injunction.
Ruth Bader Ginsburg: But you said there's no difference at all. So, it would be just as arbitrary. I mean, if... if you say innocent... innocence is the defense, the innocent tenant, then whether it's preliminary injunction or permanent injunction, it's a line that you say cannot logically stand.
Paul A. Renne: On the facts that were before the district court judge, all he had to deal with, for purposes of the injunction, was the... the off premises. And I respectfully submit it's not a final judgment that he was addressing. He was addressing what's the likelihood of success. Admittedly... and I don't... I think we all recognize that if there's an offense on the premises, the likelihood of a innocent tenant defense being successful is far less, but in the case where you have someone, like the three female respondents in this case who are long-time tenants who have had no problems... and certainly the Oakland Housing Authority is not arguing they had problems with them... and you have a grandson who smokes cigarettes in the parking lot, and HUD takes a position... and Oakland Housing Authority takes a position that we can apply some kind of collective guilt because, regardless of what the Government wants to say and characterize it as a contract action, the end result to these three respondents and the innocent... innocent members of the household is to throw them into the streets.
Anthony M. Kennedy: You think it's irrelevant that the tenants signed a contract which specifically provides this in the... in the rider. It's at page 69a of the appendix. You think that that's just irrelevant.
Paul A. Renne: No, Justice Kennedy, it's not irrelevant. The--
Anthony M. Kennedy: I... I frankly don't understand your... your standing to contest the housing authority's interpretation of a HUD regulation anyway. You just signed a lease that... that HUD gave you and that's it.
Paul A. Renne: --The... the question is... and I think the contract question is way circular, that if... if Congress did not mandate that it's an automatic eviction with no opportunity to present any kind of a defense, if Congress didn't mandate it, the fact that it's in the lease doesn't change it. You still have to get to... the question is did section 1437d(l)(6)... did it mandate? And it would be the only section of the lease.
William H. Rehnquist: Well, but I'm not sure you're correct in your argument there, Mr. Renne, because perhaps you... if you had a prohibition against that sort of a thing in the statute, certainly HUD would be bound by it. But with no... no provision one way or the other, certainly that's something that HUD is entitled to interpret, and it has interpreted it by its regulations.
Paul A. Renne: The... but it's also, in its regulations, said that the tenant has a right in the eviction court to present equitable and legal defenses.
William H. Rehnquist: But as Justice O'Connor said, you never let it get to the eviction court. The... it wasn't litigated as to whether the lease should be revoked or not. All that was litigated was whether HUD had a right to put this provision in its lease.
Paul A. Renne: I respectfully submit, Mr. Chief Justice, that is not what they litigated. They litigated that they did not have a right to terminate... to terminate an innocent tenant, not to put that in their lease. That... there's nobody saying that they can't put the provision in their lease. The question is... and... and nobody is disputing that there is a serious problem of drugs in public housing, and we aren't... we aren't suggesting anything to the contrary. But I suggest that the respondents and the way they're being treated by the Oakland Housing Authority are making them victims as well.
William H. Rehnquist: Well, but they're being treated in accordance with the provisions of their lease. And you ordinarily can't come into a court and say, gee, you know, you're putting these tenants out on the street if in fact they've breached their lease in a way that permits the landlord to do that.
Paul A. Renne: But again, with all due respect, that's assuming the answer, and that is that the lease does say that you can't present an innocent tenant defense. And again I go back to--
Anthony M. Kennedy: Well, that's a different... now that Ninth... that's... finally you're talking about something the Ninth Circuit talked about, and it seems to me that that's just absolutely dead wrong. Page 69 of the appendix has a rider, a supplemental provision of some kind, which makes it crystal clear that there is no innocent defense.
Paul A. Renne: --But the... if you are suggesting that the tenant has any choice in a public housing situation in which the... the only choice of housing they have is public housing, to say that somehow or other they have agreed to a provision which Congress didn't require.
Anthony M. Kennedy: Well, but... but now... now you're skating away from the point where we were finally at issue. You said the lease doesn't provide this, and... but now your answer is, well, even if it did, it shouldn't. I mean, that's just... that's just not responsive to my point.
Paul A. Renne: My... Justice Kennedy, what I was saying is that section 1437 of the... of the statute didn't require the language that they are putting in.
William H. Rehnquist: But under... under your theory, you have to show not just that it didn't require it, but that HUD could not, as an administrative agency, interpret it to allow that.
Paul A. Renne: And I believe--
William H. Rehnquist: It seems to me your argument... when... when you have to argue that point, the argument, as I regard the Ninth Circuit opinion, is just extremely weak.
Paul A. Renne: --I address that in three ways. One is that I believe that when you look at the circumstances under which that section was passed in conjunction with 881, the forfeiture statute, you look at the... what little comments were made by any committees that were addressing it, and when you look at the alleged rationale, none of them support HUD. But even more basic, if you accept HUD's interpretation, we respectfully submit that it raises serious constitutional issues.
William H. Rehnquist: And precisely what are those issues?
Paul A. Renne: The due process issues, Your Honor, in that what they are threatening to do is to attach punishment and collective guilt, and in American jurisprudence, we always put individual--
William H. Rehnquist: If you're... you're saying if you're... if you're evicted from a tenant... as a tenant from a public housing, you are, A, punished, and B, you're found collectively guilty?
Paul A. Renne: --You are certainly being punished, and Rucker being thrown out in the street is certainly being punished.
William H. Rehnquist: Well, then... then every eviction proceeding in the country punishes the tenant. Every successful eviction proceeding.
Paul A. Renne: And it's because the tenant has supposedly violated and the eviction court has found, based upon all the evidence that it hears, that eviction is appropriate.
William H. Rehnquist: Well, we're just going in circles, Mr.--
Stephen G. Breyer: --You... as I understand the provision that you object to, it... it says, in effect, the... the tenant who signs the lease is going to be the guarantor that there will be no drug activity in the apartment or by other people who are... are inhabitants or even people who come to the apartment, going to be a guarantor. Are you saying that that kind of a guarantee provision is simply forbidden by the Constitution?
Paul A. Renne: Under these circumstances, yes.
Stephen G. Breyer: Why?
Paul A. Renne: In... for the same reason that I believe this Court has at least indicated in... in dicta, that when you are essentially seizing what is property, particularly somebody's home, you must afford them due process including--
Stephen G. Breyer: Well, we're... now, you're talking about procedural due process, and there's no claim here, as I understand it, that the tenants were denied procedural due process. I understand your argument to be that substantive due process forbids this kind of a guarantee provision, and when I say why, I'm asking you why substantively does due process forbid.
Paul A. Renne: --And substantively is that you are... you are punishing without any guilt and without allowing the tenant to establish that he or she is innocent.
Stephen G. Breyer: So, no one can be made the guarantor under a contract for the conduct of a third person.
Paul A. Renne: Not in public housing--
Stephen G. Breyer: --from the Government. Is that... is that--
Paul A. Renne: --In the public housing situation.
Stephen G. Breyer: --Is that your position?
Paul A. Renne: That is correct.
Ruth Bader Ginsburg: Then you're challenging something that you have, as I see it, no standing to raise in this Court because I looked back at the district court's opinion, and what it said as to conduct occurring in the tenant's union... unit... it didn't say, well, we just won't extend it preliminarily. It said, eviction under such circumstances appears rationally related to a legitimate public housing goal and constitutional. It was a ruling on the merits that as far as the in premises setting is concerned, it was constitutional. And you're arguing that that's not the case, and I don't see how you can argue that when you haven't filed any cross appeal ever.
Paul A. Renne: Well, with all due respect, Justice Ginsburg, the cases in this Court have said that respondents are entitled to rely on anything that would affirm the judgment below.
Ruth Bader Ginsburg: But the judgment below that's being affirmed deals only with off premises.
Paul A. Renne: It's the Ninth Circuit judgment that is being attacked, and the Ninth Circuit does not limit itself in terms of the arguments that it raises and it... conclusions it reached--
Ruth Bader Ginsburg: Are you not making a distinction between a judgment and an opinion? I mean, what was affirmed was the judgment of the district court.
Paul A. Renne: --What was affirmed was the preliminary injunction.
Ruth Bader Ginsburg: Yes, and that preliminary injunction was only with respect to off premises activity, and that's all that the Ninth Circuit affirmed.
Paul A. Renne: Yes, I don't disagree with that at all. But the rationale of the Ninth Circuit opinion applies with equal force because the only thing they had before them is whether or not the district court had abused its discretion in the grant of preliminary injunction. But continuing to address the... the due process is that all we are saying is that these tenants have a right to establish that they should not be punished by reason of somebody else's conduct without a showing--
Stephen G. Breyer: Well, I... I realize that's your position, but in order to maintain that position on a substantive due process basis, you've got to say, I suppose, that there's no reasonable relationship between this kind of guarantor of conduct provision and the kind of drug problem which I presume it is conceded the Government can deal with. And it seems to me that there's a pretty obvious substantial relationship between them and that's why your argument doesn't seem to have any sort of intuitive plausibility to it. Can you address that?
Paul A. Renne: --Well, I don't think that... when you say it seems to be obvious, with all due respect again, I would say they talk about deterrent. It seems to me that Ms. Pearlie Rucker who took steps to assure that there were no violations, told her daughter there were no... what the problems were, and as far as she knew, knew nothing about what happened three blocks away from the apartment.
Antonin Scalia: Well, she didn't take enough steps under the lease. Under the lease she assured the housing authority that her premises would not be the site of drug activity nor would anybody who brought drug activity into the housing... into the environs of the housing authority be residing in her--
Paul A. Renne: And--
Antonin Scalia: --Now, she could do that, and you're saying she was blameless. Well, perhaps she was blameless, but she didn't do what she had committed to do, and that is to make sure that nobody in her apartment caused that place to be a drug area. There seems to me nothing unconstitutional about that, saying we're going to let you in here if you assure us that no one who resides in the... in the premises that we're giving you under this program will be the source of a drug problem. What's unconstitutional about that?
Paul A. Renne: --I suggest that we took... we take... compare it to the forfeiture statute where we have specifically... Congress has mandated that in the forfeiture situation where the drug offense can be... on the premises can be horrible, it can be a very serious drug offense, and they cannot forfeit the tenancy.
Antonin Scalia: Congress has said that. You think Congress had to say that?
Paul A. Renne: Yes.
Antonin Scalia: My goodness. I... there are many instances under State law where you forfeit an automobile which is being used for contraband even if you do not know that it's being used. It's your responsibility to make sure your car is not used for contraband. That's unconstitutional?
Paul A. Renne: And the... the... it's not... this Court has held it is not--
Antonin Scalia: Not--
Paul A. Renne: --if there's a nexus either because the automobile was used--
Antonin Scalia: --It's your car. And... and what the State says is when you have a car, it's your responsibility to make sure it's not used for contraband, and if it is, we take it away. That's not unconstitutional. Why is this any different? In fact, this is a good deal less because it's not even her premises. It is a condition of giving her this benefit.
Paul A. Renne: --Well, I... I think the courts recognized that it is her premises. It's her home regardless of the fact that it's a public housing or it's private. And as I believe that this Court has commented in opinions that you don't forfeit a house if somebody smokes one marijuana cigarette in it--
William H. Rehnquist: But--
Paul A. Renne: --even though it may have occurred on the premises.
William H. Rehnquist: --forfeiture suggests the Government coming in from the outside and taking the property because of criminal activity. Here the Government isn't coming in from the outside. The Government is the owner of the property. It is the landlord. And so, you're not talking about the same sort of forfeiture at all.
Paul A. Renne: Well, 881 talks specifically about public housing leases as being subject to forfeiture. So, you are... in those contexts you're talking about the identical situation that under the forfeiture statute somebody could come in to Ms. Rucker, if she violated some criminal law... could come and try to forfeit it. But it's much easier. Let's get the Oakland Housing Authority to come in here and we don't have to show she knew anything about it. She could be perfectly innocent, and that is, we submit is fundamentally unfair.
John Paul Stevens: Does the landlord have some duty to provide a secure... a secure premises, i.e., secure from drug use?
Paul A. Renne: Yes. And I... and I submit that easily enough to do as they said... as... as counsel said with Ms. Rucker. They said, we withdrew the unlawful detainer action, although I might say they didn't withdraw the eviction notice, but they withdrew the unlawful detainer action when the individual who was involved was separated from the premises. That's what we respectfully submit is... that's the easy problem in the innocent tenant case, is to go to that tenant or to have the tenant come to HUD and say, look, I've got a problem. My son is... is into marijuana and he won't listen to me. I want him removed. Take him off the household list. Now, is she going to do it confronted with the fact that HUD could say or Oakland Housing Authority could say, well, sorry, Ms. Rucker, rather than ask your daughter to go off, we're going to throw you out? Why would she ever go there?
Antonin Scalia: The housing authority wants to put the responsibility on her.
Paul A. Renne: Right.
Antonin Scalia: It wants to put the responsibility on the tenants to make sure that they are not being the cause of a drug problem in the facility. It seems to me perfectly reasonable, and if she... if she has been at fault in not doing that or even in all innocence hasn't done it properly, nonetheless, she hasn't fulfilled her obligation under the lease, which is to make sure that nobody on her premises is a source of a problem.
Paul A. Renne: And... and the best way for... to make sure that that doesn't happen, that is, that no one on her household violates a drug law or... remember, the statute doesn't just relate to drugs. It relates to criminal activity. And as the amicus briefs point out, there... and... that there are spouses who are being evicted by reason of the fact that they're subject to spousal abuse which violates the criminal law. And... and all we're saying is they have to have a chance to go to the eviction court and present that to the eviction court so that the eviction court has a right to deal with whether or not there is good cause. And it's interesting in the... in the statute we're talking about there is a... in section 5, it talks about repeated, constant violations and other good cause. When you get to 6, it only talks about shall be a cause for eviction. Good cause is the thing the eviction court should have a right to deal with, and there's nothing that said the State law was being preempted. I'm suggesting that if... if what HUD wants is to have voluntary cleanup by good people like Ms. Rucker and Ms. Hill, Ms. Lee, they should encourage them to say, give us help to make sure that we can live with that because I think we all know in the real world you're talking about teenage grandsons, people who you don't know exactly what they're doing from time to time, and for... for a grandmother to be told the only way you can assure yourself is make sure nobody else lives here, it's the only way that... that these people can assure themselves that they aren't going to get thrown out--
John Paul Stevens: Well, you're hypothesizing an exercise of discretion by HUD that's just not in the record.
Paul A. Renne: --All right. Thank you.
William H. Rehnquist: Thank you, Mr. Renne. Mr. Feldman, you have 3 minutes remaining.
James A. Feldman: Thank you. I'd first like to add that the... the people... the people who had committed the drug offenses in this case were between ages 20 and 44 years old. They weren't teenagers. The question of... as to the relationship of... of Federal law and the... the Federal law that waives... that permits HUD to waive the grievance procedure in the housing authority and say you can just go to the eviction court... and that law does provide that HUD has to... it can only permit that if it can ensure... assure that the eviction court gives you full due process rights to litigate whatever issues there are. And in that sense, Federal law does guarantee you the right to have all of your defenses litigated in the eviction proceeding if HUD is going to grant such a waiver, which it's done in 47 States.
William H. Rehnquist: And the eviction proceeding is in the State court?
James A. Feldman: Yes, but what Federal law doesn't do is say that there's any particular defenses. As the question of what the defenses are that you have to have the full right to litigate, that's a question of... of substantive Federal law. Now, in this case, the statute makes clear I think that serious... that drug-related criminal activity is cause for termination of tenancy, and HUD has construed it to mean that. Now, the question then about... the only possible source for a defense would be State law, and the question about for State law defense would be does that conflict with either the Federal statute or the purposes Congress was trying to achieve. It wouldn't be possible for a State court to disagree with the balance that Congress struck when it... when it passed the statute. So, the only question would be, therefore, if you have any State law defenses, they would have to be ones that don't conflict with the judgment that Congress made that eviction under 1437d(l)(6) is for serious... it's for drug... drug-related criminal activity by a household member. I'd like to add just one other point which is in 42 U.S.C., section 1437, which is kind of the statement of policy right at the beginning of the United States Housing Act, it says, it is the policy of the United States... and it names a bunch of things, which I'm not going to read. And it says, to vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs. It was those local public housing agencies that know what the conditions are, and that... it is consistent with that that HUD has construed the statute and Congress in fact enacted the statute to give them the discretion with this clause, as with enforcement of rent clauses or any other clause, to decide when they should be enforced and when they should be enforced. That's not a role for the eviction court. Thank you.
William H. Rehnquist: Thank you, Mr. Feldman. The case is submitted.