Constitutional concerns in section 8 housing: transfer voucher terminations and the impact on participant families.

• Author: Engel, Amanda R.

1. INTRODUCTION

   Currently, there is a procedural due process void in the existing Section 8 housing regulations, which is having immediate, harmful effects on program participants. When a Section 8 Housing Assistance Program participant wishes to move, he receives a transfer voucher from the local Public Housing Agency (PHA). The PHA then has the discretion to choose not to extend the term of this transfer voucher, effectively terminating the family's participation in the program. Despite the ramifications of the local PHA's decision, the participant family has no right to a pre-termination hearing, where they can present their case and appeal to the PHA to reverse its decision.

   Courts have consistently held that participants in the Section 8 Housing Program have a constitutionally recognized, protectable property interest in their program benefits. (1) In general, the fact that this is a constitutionally protected interest means that participants are entitled to proper due process before their participation in the program can be terminated. (2) However, when the PHA allows a participant's transfer voucher to expire, the U.S. Department of Housing and Urban Development's regulations allow a participant's housing benefits to be revoked without proper observance of their due process rights. (3)

   In Parts II and III, this Note examines the legislative and judicial context of Section 8 Housing Assistance Vouchers, including judicial decisions requiring due process procedures within the context of public assistance. Part IV then analyzes a recent case in Illinois where the court found that the local PHA must satisfy due process procedures before terminating a Section 8 transfer voucher, a decision that challenged persuasive precedent. (4) Part V will then examine current legal and social trends toward greater accountability within housing assistance programs, and consider the opportunity presented by the Illinois case within that context. Finally, Part VI considers the implication of the Illinois court case and how this case might serve as a catalyst for judicial and legislative corrective response to this constitutional violation.

2. LEGISLATIVE CONTEXT

   In 1937, Congress enacted the United States Housing Act to facilitate the construction of a public housing system in the United States. (5) Over the next thirty years, Congress established housing assistance programs to assist "low-income families in obtaining a decent place to live and [to promote] economically mixed housing." (6) The U.S. Department of Housing and Urban Development (HUD) was given the responsibility of creating regulations for the administration of these programs. (7) The resulting regulations are codified in 24 C.F.R. [section] 982. (8)

   The Section 8 Housing Program, also known as the HUD Housing Choice Voucher Program, issues housing vouchers to program participants. (9) To qualify for a voucher, typically a family's income must be less than fifty percent of the median income for the area in which they live. (10) Tenants must apply for the program and are placed on a waiting list until the local PHA has sufficient funds to accept new participant families into the program. (11) Tenants may remain on a waiting list for years waiting for acceptance into the program. (12)

   Once they have been accepted into the program, the participant families are then permitted to find their own housing, subject to approval by their local PHA. (13) The local PHA pays a housing subsidy directly to the landlord on behalf of the participant family, which assists with a portion of the family's rent. (14) If the participant family later wants to relocate, the voucher program allows families to move within their local PHA's jurisdiction or to another PHA jurisdiction without losing their housing assistance. (15) Generally, the requirements for moving are that the family notifies the PHA, terminates its existing lease, (16) and finds acceptable new housing. (17)

   While federal regulations govern the structure of the voucher program, the program is administered by the local PHAs. (18) Every PHA is required to adopt a written administrative plan that establishes local policies, and the PHA is required to administer the program pursuant to this plan. (19) The local PHA also has authority in accordance with federal regulations to terminate a family from the voucher program. (20) For each decision a PHA makes to terminate assistance, the federal regulations dictate whether an informal hearing is required before the family can be terminated. (21) According to federal regulations, the decision not to extend a participant family's transfer voucher does not require an informal hearing. (22)

   The initial term of a transfer voucher must be at least 60 days. (23) The local PHA then has the discretion to grant one or more extensions of the transfer voucher in accordance with its local administrative plan. (24) Additionally, if the participant family has submitted a request for approval of a new lease during the voucher term, the PHA must also grant a suspension of the voucher term while the request is processed. (25)

3. CONSTITUTIONAL CONSIDERATIONS

   1. Constitutional Protection

      Procedural due process protects against the unjustified deprivation of property. However, the Supreme Court has held that "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount." (26) The Supreme Court has found a constitutionally protected right in public assistance, meaning that due process rights and procedures apply. (27) Public assistance often provides recipients with the means by which they can obtain housing, food, clothing, or other living essentials. (28) Thus, termination of public aid before a matter is tried and resolved would deprive the recipient of the financial resources he needs to live and survive while the matter is pending. (29) This creates a deadlock situation that may be devastating to many recipients. (30) For that reason, before assistance can be terminated, a pre-termination evidentiary hearing is required in order to satisfy procedural due process. (31)

      Housing benefits, such as the housing subsidies provided through the Section 8 program, have been recognized as protectable property interests under the Fourteenth Amendment. (32) Thus, termination of a participant's benefits without due process is a deprivation of property in violation of the participant's constitutional rights. (33) The Seventh Circuit settled this issue in Simmons v. Drew. (34) In that case, plaintiffs had been terminated from a public housing program for allegedly violating their lease. (35) They did not receive a pre-termination hearing from the local PHA before they were expelled from the program and their benefits terminated. (36) The Simmons court held that the local PHA's actions were unconstitutional because the program participant had a protectable property right in the housing voucher, and the PHA was required to follow procedural due process before expelling the participant family. (37)

   2. Procedural Due Process Requirements

      A recipient of public assistance, or similar constitutionally protected property interests, is entitled to specific due process procedures before that assistance can be terminated. The U.S. Supreme Court defined these procedures in Goldberg v. Kelly, (38) Before his benefits can be terminated, a recipient must "have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." (39) Written submissions by the recipient are not sufficient, as welfare recipients often lack the writing skills to express the situation completely and coherently in writing. (40) Additionally, "the decision maker should state the reasons for his determination and indicate the evidence he relied on." (41) The decision maker must ensure that these procedures are followed to prevent an unconstitutional deprivation of a property interest.

      While courts have universally applied due process protections to participants of Section 8 housing, (42) there remains a void for holders of a transfer voucher. Courts have found transfer voucher holders to have a different status than Section 8 participants, and thus have held that termination of this transfer voucher does not create due process concerns or a separate cause of action. (43) Some courts have found that a participant family's property rights in the Section 8 housing subsidies expire upon receipt of the transfer voucher. (44) As a result, the participant family then has no right to an informal hearing in accordance with due process procedures before their benefits are terminated. (45)

      Courts have also declined to rule on the issue altogether, preferring not to decide whether a pre-termination hearing is required upon expiration of a transfer voucher. (46) This suggests that the issue has not yet been settled, and there might be constitutional issues implicated that courts have preferred not to touch. (47) Many times these challenges are brought in state court, even though they address a federal constitutional issue, meaning the courts may not want to rule on an issue more appropriately addressed in federal court.

4. ANALYSIS OF PICKETT

   The issue of the constitutionality of a participant's program termination for an expired transfer voucher was recently raised in the Northern District of Illinois. In Pickett v. Housing Authority of Cook County, (48) the court found that the local PHA's refusal to provide a hearing to a participant family whose transfer voucher expired constituted a violation of procedural due process rights. (49) This was the first case where a court found that the participant family's...