As
Enron board members Pug Winokur and Frank Savage are both board members and
shareholders of companies (DynCorp and Lockheed) that have substantial contracts
and power running both HUD and the War on Drugs, I thought this article
describing some of the HUD WOD standards regarding recent negligence standards
decisions might be of interest.
If Pug
Winokur was held to the Perlie Rucker standard of negligence for his role as
Chair of the finance committee of Enron, what would that look
like?
If
Lockheed, DynCorp, and AMS were held to the Perlie Rucker standard of negligence
for all the missing money at HUD, what would that look like?
I
wonder what Perlie and her collegues in Oakland think of Pug and Frank's
performance.....
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http://slate.msn.com/?id=2062274&device=
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supreme
court dispatches
Too Old To Narc
The justices toss their bingo buddies
into the street.
By Dahlia Lithwick
Posted Tuesday, February 19, 2002, at
3:30 PM PT
In case you missed Alex Kotlowitz's There Are No Children
Here, the
best account of life in government housing projects, the facts of
HUD
v. Rucker provide a pretty good summary of what a senior citizen must
endure there. Poverty, fear, drug deals and drive-bys, kids and
grandkids who come and go, nurses who use your apartment in lieu of a
crack den.
And that's before the federal government evicts you
because some
grandkid fired up a doobie in the parking lot. So out go
Pearlie
Rucker (the 63-year-old great-grandmother whose mentally retarded
daughter was caught with a crack pipe three blocks from the project);
Willie Lees (a 71-year-old grandma whose grandson smoked pot in the
parking lot); Barbara Hill (a 63-year-old grandma whose grandson
smoked
pot in the parking lot); and Herman Walker (a 75-year-old
semi-paralyzed
former preacher whose caretaker was stashing crack
paraphernalia at his
apartment). Maybe the court thinks Rucker can
move into the Plaza Hotel. A
useful reality check for all of us
renters, for whom the most onerous
requirement in our lease agreement
is that we refrain from driving nails
into the walls S
At issue today is 42 U.S.C. Section 1437d(1)(6), a 1988
law allowing
public housing agencies to evict any tenant for any
drug-related
activity (with or without a criminal conviction) "engaged
in by a
public housing tenant, any member of the tenant's household, or any
guest or other person under the tenant's control."
It's unclear
what a tenant-particularly an elderly tenant with a
shifting roster of house
guests-can purport to "control." But
according to the Department
of Housing and Urban Development and the
various public housing authorities
in question, the rules mean that
whether or not the tenants in question knew
about the drug use, once
it happens, they're out. Raising the question: Does
Florida Gov. Jeb
Bush live in government-subsidized housing?
The four
tenants evicted from their homes by the Oakland Housing
Authority all claim
to have known nothing about the drug use of their
various
children/grandchildren/caregivers. They each claim to have
warned their
families about the consequences of drug use on the
premises. And in three of
the four cases, the drug use happened out
of the apartment-either blocks
away from the project or in the
parking lot. And you may want to stop and
consider whether your own
grandma ever knew more than about 3 percent of
what you were doing in
your spare time.
Still, the government theory
seems to be one of strict liability for
old poor people. Strict liability
means the courts don't care what
the accused knew or didn't know. You are
guilty regardless of fault
or intention. A good example of a strict
liability crime is statutory
rape. The courts don't care if she looked 16,
said she was 16, or was
too drunk to remember. The burden is on the squire
to sort it out. So
making the drug use of your grandchildren subject to
strict liability
evictions assumes that public housing tenants are the best
source of
"control" over their families and guests. Of course, HUD
could go
further and demand that residents of public housing projects
actually
make citizens' arrests for any drug use on the premises, on penalty
of eviction. Or maybe the police should just do their jobs.
In any
event, the district court in Oakland prevented the Oakland
Housing Authority
from evicting the seniors, a three-judge panel of
the 9th Circuit Court of
Appeals reversed this, and then the whole
9th Circuit, sitting en banc,
reversed the reversal, stating that the
law didn't authorize evictions of
innocent tenants. Meanwhile, a
panel of the 11th Circuit Court of Appeals
went the other way, and
the Supreme Court agreed to hear the
case.
With facts this sympathetic, you might think that it would be hard
to
lose the votes of the entire Supreme Court at oral argument, but
you'd be wrong. Paul Renne, arguing on behalf of the evicted tenants,
manages to do just that. Which leads to the list of "The 10 Best Ways
To Lose the Most Sympathetic Case in History":
1) Argue That
Acts of Congress Don't Mean What They Say: Renne and
the 9th Circuit must
prove that Congress didn't mean to impose strict
liability on public housing
tenants in Section 1437d(1)(6). The 9th
Circuit did that by suggesting that
Congress was confused, and the
results would be absurd (i.e., your nephew in
Boston's drug use could
get you kicked out of an Oakland public housing
project). Renne tries
to argue the same point and promptly loses the
right-tilting five
justices, who always hold that laws mean what they say,
unless a Bush
presidency is on the line.
2) Argue That Regulatory
Agencies Don't Mean What They Say: The law
of the land is that courts give
federal agencies deference to
interpret their own regulations. Once HUD
agrees that it wants a
zero-tolerance policy for drug abuse, no court in the
world (except
the 9th Circuit) would try to mess with that.
3) Argue
That the Tenants Have No Recourse in Eviction Court Without
Having Ever
Filed an Action in Eviction Court: Renne argues that his
clients should have
had their day in court. But they never tried to
appeal the eviction in state
court; they sought a big fancy
injunction in federal court instead. Here's
where Renne loses Justice
O'Connor and forces Chief Justice Rehnquist to
sigh, "We're just
going in circles."
4) Argue That Eviction
>From Public Housing Is Analogous to Forfeiture
of Personal Property: Renne
bangs on this drum for most of the
morning, even after it's clear that
Justices Kennedy, Rehnquist, and
Scalia all reject the analogy. Says
Rehnquist, "Forfeiture suggests
the government coming in and taking.
Here the government is the
landlord."
5) Argue for a Better
Result Than You Achieved in the Court of
Appeals: Although Renne won his
case in the 9th Circuit, he asks the
Supreme Court to create an even higher
standard for drug-related
evictions. This loses even Justice Ginsberg, who
gasps, "You seem to
be asking us to reverse the district court because
it didn't go far
enough."
6) Try To Convince the High Court That
Anything Coming Out of the 9th
Circuit Makes Sense: Talk about one strike
and you're out. The court
barely attempts to hide its disdain for the 9th
Circuit's reasoning.
"This isn't in the federal rules!" sputters
O'Connor. "This is
manufactured by the 9th Circuit! It isn't
there!" Later Rehnquist
dismisses the 9th Circuit opinion as
"extremely weak."
7) Argue There's a Silent "Innocent
Tenant Defense" Implied in Every
Statute: Renne keeps insisting that
the statute's silence about a
possible innocent tenant defense somehow means
that the defense
exists. This drives Scalia to insist that the statute
"says nothing
about it because it doesn't exist."
8) Insist
the Contract Signed by the Tenants Meant Nothing: Fairly or
not, each tenant
agreed to HUD's drug policy in writing. And fairly
or not, this court has
never met a contract it didn't like.
Dismissing these agreements as having
been signed under duress just
makes the justices-particularly Kennedy and
Rehnquist-mad.
9) Argue That There's a Constitutional Violation: Even
Souter seems
to reject the argument that making someone sign on as a
guarantor of
their visitors' behavior is unconstitutional.
10) Try To
Make This About Age: Sure, the court is about to toss four
senior citizens
out onto the streets. But why should they feel any
compassion? The average
age of the four tenants is 68. The average
age of the nine justices is 68,
too. Do they have any idea what their
grandkids are doing
tonight?
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