JUDGES SHOW CONTEMPT FOR HUD EVICTION POLICY

SAN FRANCISCO -- Federal appellate judges showed contempt Tuesday for a government policy allowing the eviction of low-income housing tenants for their family members' drug activities even if the tenant was unaware of such illegalities.

An 11-member panel of the U.S. 9th Circuit Court of Appeals heard arguments here over the Department of Housing and Urban Development regulation, which applies to more than 3 million low-income tenants nationwide. A three-judge panel of the same circuit voted 2-1 in favor of HUD's 1991 policy, but the court abandoned that decision last month and called for a hearing with a full panel of judges.

Judge Stephen Reinhardt was dismayed over HUD's policy of allowing evictions even if a family member or guest smoked marijuana in "Yankee Stadium" and then went to the HUD tenant's home.

"Is that a reason to evict grandmas?" Reinhardt asked.

Government attorney Howard Scher said such an eviction was plausible.

Scher replied in the affirmative. Congress gave a pretty broad tool here, he said. There is no innocent tenant defense afforded.

- -Other judges asked similar questions and appeared troubled with the government's position that tenants could be evicted even if they had no knowledge of the drug activity. The court did not indicate when it would rule in the closely watched case.

The case reached the appeals court after U.S. District Judge Charles Breyer barred the Oakland Housing Authority from evicting four tenants in 1998 in a ruling against the HUD policy.

Breyer said evictions of "innocent" tenants did not appear to be authorized by federal law and would not discourage drug crimes.

But a three-member panel of the appeals court said in February the policy was legal and aimed at "preventing tenants from turning a blind eye to the conduct of a household member or guest."

Dissenting Judge William Fletcher wrote the eviction policy "deprives innocent people of property that was not involved in any crime and punishes innocent people for crimes that they did not commit and could not prevent." He said HUD, which provides subsidized housing to the poor, had exceeded the scope of the federal law on drug-related evictions. That law, passed in 1988 and a precursor to HUD's policy, said drug-related crimes on or near public housing property by a tenant, a household member or a "guest or other person under the tenant's control" was grounds for eviction.

In adopting regulations in 1991, HUD used similar wording but refused to exempt tenants who were unaware of the drug activity.

The four tenants in the Oakland case have been allowed to keep their apartments because legal wrangling in the case continues.

One evicted 63-year-old woman's mentally disabled daughter allegedly had cocaine three blocks from the apartment, without her mother's knowledge. Two tenants, aged 71 and 63, had grandsons who lived with them and allegedly had marijuana in a parking lot. The fourth tenant was a 75-year-old disabled man whose caretaker allegedly had cocaine in the apartment. The tenant was twice given notice of the drug activity.

The circuit in February said the wording of the law showed that Congress assumed household members and guests were under a tenant's "control" and intended to let HUD and local agencies decide the scope of evictions.

The case is Rucker vs. Davis, 98-00781.