Due Process

Probation on discriminating against Section 8 recipients does not violate due process

/ Antidiscrimination Law, Due Process, Leaseholds, Real Estate Transactions

The Minnesota Supreme Court has held that a state statute that prohibits landlords from refusing to rent to housing voucher (Section 8) recipients does not violate the due process or equal protection clauses of the Minnesota Constitution. Fletcher Properties, Inc. v. City of Minneapolis, 947 N.W.2d 1 (Minn. 2020). While federal law does not require landlords to rent to tenants whose rent is subsidized by housing vouchers, some states do impose this obligation on landlords. Some landlords object to the Section 8 program because it imposes procedures and costs on such landlords and some substantive terms such as prohibiting eviction without good cause. The court held that the law did not deprive landlords of due process of law because the legislature could reasonably believe that it served the public purpose of enabling voucher holders to find housing. And the fact that some landlords were exempt from the statutory obligations did not violate …

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Section 8 recipients denied right to file §1983 suit for wrongful termination of benefits

/ Due Process

The Eleventh Circuit has overruled Basco v. Manchin, 514 F.3d 1177 (11th Cir. 2008) and held that federal law does not empower housing choice voucher (Section 8) holders to bring civil rights claims under 42 U.S.C. §1983 to contest wrongful termination of benefits by a housing authority. Yarbrough v. Decatur Housing Auth., 2019 WL 3521728 (11th Cir. 2019). In this case, the hearing officer determined that the arrest and indictment of the tenant for drug-related offenses was enough to establish by a preponderance of the evidence that the tenant was no longer legally entitled to receive Section 8 subsidies for housing. The tenant brought a §1983 claim in federal court arguing that the evidence was insufficient to prove that she was using or selling drugs and that a federal regulation interpreting the Federal Housing Act, 42 U.S.C. §1437 et seq., entitled here to continue receiving benefits unless there was sufficient evidence …

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Eighth Amendment’s Excessive Fines Clause applies to the states

/ Due Process, Takings

The Supreme Court held in Timbs v. Indiana, 2019 WL 691578 (2019) that the Eighth Amendment’s Excessive Fines Clause applies to the states by incorporation into the due process clause of the fourteenth amendment. Tyson Timbs had pled guilty to drug crimes that had a maximum fine of $10,000 but the police had seized his car in a civil forfeiture even though the car was worth $42,000 or more than four times the maximum fine for the crime. The trial court had found the forfeiture to be unconstitutional because it was so grossly disproportionate to the gravity of his offense. While that ruling was upheld by the appeals court, it was overruled by the Indiana Supreme Court on the ground that the Excessive Fines Clause did not apply to the states. That opinion was reversed by the United States Supreme Court and the case remanded for proceedings consistent with it which will …

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City has a constitutional due process obligation to notify an owner that the owner’s property has been adjudicated to be blighted and subject to condemnation

/ Due Process, Nuisance, Takings

Colorado statutes create a procedure for designating property as blighted and subject to condemnation and transfer either to public use or transfer to another owner. While the statute required notice when the city begins studying whether the property is blighted and when a public hearing is held, it did not require notice of a decision that the property is in fact blighted. The Tenth Circuit found this to violate the due process clause because the statute gives property owners a right to judicial review of the blight determination but without notice of the blight determination owners have no reasonable opportunity to seek such judicial review. M.A.K. Investment Group, LLC v. City of Glendale,889 F.3d 1173 (10th Cir. 2018).

New York City and San Francisco vote to guarantee lawyers for some or all tenants facing eviction

/ Consumer Protection, Due Process, Leaseholds, Real Estate Transactions

New York City was the first city to guarantee lawyers to most low-income tenants facing eviction. Ashley Dejean, New York Becomes First City to Guarantee Lawyers to Tenants Facing Eviction, Mother Jones, Aug. 11, 2017.. When fully in force, the law will provide legal services to tenatns facing eviction who make below 200 percent of the federal poverty line. The program will be phased in over a five-year period.  San Francisco voters passed Proposition F on June 5, 2018 that would require the city to establish, fund, and run a program to provide legal representation for all residential tenants in San Francisco facing eviction regardless of their income. Adam Brinklow, SF voters guarantee lawyers for evicted tenants: Proposition F passes with more than 55 percent of the vote, Curbed: San Francisco, Jun. 7, 2018.

No sex discrimination or violation of privacy rights when trans students use bathrooms corresponding to their gender identity

/ Antidiscrimination Law, Due Process, Gender Identity, Sexual Orientation

The Third Circuit entertained and rejected a claim by cisgender students (whose gender identity corresponds to the gender assigned at birth) that their constitutional rights to privacy and their statutory rights to be free from sex discrimination were violated when trans students were allowed to use bathrooms corresponding to their gender identity. Doe v. Boyertown Area School District,2018 U.S. App. LEXIS 16323 (3d Cir. 2018). The court found that cisgender students were not deprived of a right to privacy when they had to change clothes in view of transgender students because the presence of the transgender students in bathroom and locker rooms according with their gender identity furthered an important government interest in preventing sex discrimination. Further, the court found that it would constitute sex discrimination not to treat transgender students in accord with their gender identity so that allowing them to do so could not constitute sex discrimination against cisgender …

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Hawaii Supreme Court recognizes property right to clean air

/ Due Process, Environmental Law, Nuisance

The Supreme Court of Hawaii ruled in In re Maui Elec. Co., 2017 Haw. LEXIS 284 (2017) (for majority opinion click here; for dissenting opinion click here) that the state constitution confers a property right to a clean and healty environment sufficient and that the Sierra Club has standing to bring a lawsuit challenging the granting of a power plant permit to a coal-fired plant because its emissions will contribute to air pollution and arguably violated standards contained in the federal Clean Air Act. Because the claim is based on state law and heard in state court, federal court prudential and constitutional limitiations in standing, such as led to similar claims being thrown out of federal court in cases like Kivalina, does not apply to the state court proceedings. The Hawaii Constitution guarantees each person “the right to a clean and healthful environment, as defined by laws relating to environmental quality.” Haw. …

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Admitted student status at public university held to be a property right that cannot be taken without due process of law

/ Due Process

A federal court in Virginia has held that a student at a public university has a constitutionally-protected property interest in his place at the university and that he cannot be deprived of that right without due process of law under the fourteenth amendment. Doe v. Alger, 2016 WL 7429458 (W.D. Va. 2016). The student faced disciplinary hearings arising oiut of allegations that he sexually assaulted another student. He complained that the appeals process was unfair. He was found not responsible after the first hearing but after submission of new evidence he claims he was not able to fully contest, he was held responsible by the appeals committee. The court did not rule on the substantive question of the fairness of the procedures but did hold that students at a public university have a constitutionally protected right to continue as admitted students unless deprived of that right by due process of law. Suspending the student …

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Sex offender cannot be evicted from state-subsidized housing because of regulatory limitation imposed after the lease began

/ Antidiscrimination Law, Consumer Protection, Due Process, Homelessness

The Connecticut Supreme Court has held that a registered sex offender cannot be evicted from housing subisidized by the state when he obtained the subsidy and the housing before passage of the state law banning such assistance. Shannon v. Comm’r of Housing, 140 A.3d 903 (Conn. 2016) (see dissenting opinion here). The court applied a state law that provides that any law that imposes “any new obligation on any person or corporation shall [not] be construed to have a retroactive effect.” Conn. Gen. Stat. §55-3. Under that law a new regulation that denies housing assistance to registered sex offenders could not be applied retroactively. The Court noted, however, that “although there is a property interest in the receipt of a public benefit so long as it is available, without statutory terms restricting its authority to do so, the legislature remains free to change or eliminate benefit entitlements by amending or repealing the …

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Sixth Amendment right to counsel prohibits state from freezing legitimate assets of a criminal defendant needed to pay for counsel of choice

/ Due Process, Personal Property

The Supreme Court held in Luis v. United States, 136 S.Ct. 1083 (U.S. 2016), that the government may not prevent a criminal defendant from using funds not derived from a crime to pay for counsel of choice. No constitutional issue arose from confiscating the proceeds of a crime but the law in question froze the defendant’s assets to ensure that moneys would be available to pay any eventual fines or penalties. While that was a legitimate government purpose it was not sufficient to justify the imposition on the defendant’s right under the Sixth Amendment to seek assistance of counsel of the defendant’s choice.

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