If you’re into procedural due process, Goldberg v. Kelly, Mullane v. Cent. Hanover Bank & Trust, and depressing fact patterns, then Speelman v. Bellingham Housing Authority (Division 1, April 9, 2012), is a case for you.
In February 2011, Melinda Speelman was on probation and living in Section 8 housing administered by the Bellingham Housing Authority (“BHA”). Under the BHA rules, to qualify for housing assistance payments Speelman was required to (1) notify BHA if she ceased residing in the residence, (2) obtain BHA approval for new residents, and (3) notify BHA if/when her family was absent from the residence.
If a payment recipient breaks one of the rules, then BHA can terminate the assistance. However, before termination, the BHA’s own rules require the BHA to provide the recipient with notice of the proposed action, with the notice informing the recipient that she is entitled to request a hearing within 14 days.
Everything was fine with Speelman’s BHA housing until March 2011, when she “asked the sentencing court to revoke her probation because she could not pay monthly probation fees. The trial court did so and sentenced her to 75 days in jail.” Speelman arranged for her nineteen-year-old daughter to stay at the residence to care for her younger children while she was in jail.
At some point, a BHA police officer showed up at the residence in response to a noise complaint. After investigation, he learned that (1) Speelman was in jail and no longer living at the residence and (2) Speelman’s daughter was living at the residence without BHA authorization. Both facts constituted violations of the BHA rules.
BHA then sent Speelman notice that it would be terminating her assistance. It sent this notice to her residence, not to the jail, despite the fact that BHA knew Speelman was in jail. Indeed, Speelman’s presence in jail was the basis for the BHA’s action.
BHA sent the notice on June 2, so the 14-day period to request a hearing expired on June 16. Speelman was released from jail on June 17. She subsequently (six days later) requested a hearing, BHA then denied the request, so Speelman sued to enjoin the termination of her assistance.
The question for the Court of Appeals was whether BHA’s notice to Speelman’s residence was sufficient to comply with constitutional due process requirements. As we all remember from 1L Civ Pro, the Constitution does not require actual notice; it just requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Both sides agreed that Speelman “has a constitutionally protected property interest in her housing choice voucher” and that she “was entitled to an opportunity to be heard.”
The Court of Appeals held that BHA’s notice was not sufficiently “reasonably calculated” given “all the circumstances.” Specifically, BHA had actual knowledge that Speelman was in jail, not her residence. Accordingly, BHA was required to send the termination notice to Speelman in jail.
A few thoughts: First, the actual/constructive knowledge distinction is important here. This is not a case of one state hand not knowing what the other state hand is doing. The Court does not impose on BHA a constitutional requirement to determine whether a resident is in jail at the time it sends the notice. Obviously, if BHA has access to jail/prison records, it has constructive knowledge whenever a resident is in jail. But that is not what happened here. The officer had actual knowledge, and that actual knowledge was the basis for the particular notice to this particular resident. In those circumstances, the notice has to go to the jail.
Second, the Court’s holding was based on both (a) BHA’s actual knowledge that Speelman was not home and (b) BHA’s actual knowledge of where Speelman was. The first factor standing alone likely would not have supported the result. In other words, even if BHA actually knows a resident is not at home, it can still send the notice to the home, provided that it does not have actual knowledge of where the resident now is. If you don’t know where to send the notice, a reasonable attempt should be sufficient; but if you know then you have to send it to the right place (which is basically the Supreme Court’s instruction in Eisen, to take it back to 1L Civ Pro again).