Wednesday, January 13, 2016
Dickinson on the One-Strike Rule in Housing Evictions
Gerald Dickinson (Pitt) has posted Towards a New Eviction Jurisprudence (Georgetown Journal on Poverty Law Policy) on SSRN. Here's the abstract:
The One-Strike Rule, contemplated in a model lease provision, has been the primary mechanism employed by Congress to eliminate the “scourge of drugs” in public housing projects. The rule gives public housing authorities (PHA) discretion to evict tenants engaged in drug-related criminal activity and hold the tenant equally liable if a guest or family member engaged in the criminal activity, even if the tenant had no knowledge of the offense. The Supreme Court most notably upheld this policy in 2002 in United States Department of Housing and Urban Development v. Rucker.
Today the wisdom of that rule, which has served as the foundation for PHAs’ eviction policies, has come under attack by recent court decisions in Pennsylvania and North Carolina. In Housing Authority of Pittsburgh v. Somerville, the trial court disrupted the normal state of affairs by denying the eviction of a young, unemployed, single woman, expecting her first child, notwithstanding a prior drug-related conviction, holding that eviction would result in a “serious injustice.” While in Eastern Carolina Regional Housing Authority v. Lofton, a state appellate court found that the eviction of a single mother and her three young children, all innocent bystanders to drug-related criminal activity, would be excessive and shockingly unjust and that eviction would produce an “unconscionable” result.
This Article engages in a normative interpretation of the statutes the courts in Pennsylvania and North Carolina relied upon in denying the eviction of poor tenants, specifically 35 P.S. § 780-157(b) of the Pennsylvania Expedited Eviction of Drug Traffickers Act and § 42-26(a)(2) of the North Carolina General Statutes. The statutes implicitly attack Rucker by authorizing trial courts to deny the eviction of the tenant if the courts are convinced the eviction would result in serious injustices or unconscionable consequences, thus running afoul of the post-Rucker normal state of affairs. This Article argues that the Pennsylvania and North Carolina eviction statutes, and the recent rulings relying on the serious injustice exemption and unconscionability rule, serve as the foundation for what I coin a “new eviction jurisprudence” that gives special consideration to the constitutional protections of property afforded to groups most vulnerable to the One-Strike Rule: households headed by poor women with children.