Compulsory Evictions and Crime-Free Housing: Crime Prevention or Collective Punishment?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Wednesday, August 7, 2019, during a live teleforum conference call held exclusively for Federalist Society members.  

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "Compulsory Evictions and Crime-Free Housing: Crime Prevention or Collective Punishment?" My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Mr. Robert McNamara, who is a Senior Attorney at the Institute for Justice. After our speaker gives his opening remarks, we will have an audience Q&A, so please keep in mind what questions you have for this case, for this topic, or for Bob himself. Thank you so much for sharing with us today. Bob, the floor is yours.

 

Robert McNamara:  Well, thank you very much. Thanks for the kind introduction and the generous invitation to join you today, and thanks everyone for calling in. This is, I think, a fascinating topic and a fast-growing topic in sort of the general area of both crime regulation and just municipal regulation of land use and of rentals.

 

      My particular entry into the issue comes through a pair of Institute for Justice clients, Jessica Barron and Kenny Wylie. Jessica and Kenny have been together for about 18 years. They have three children, all teenagers now. And they pride themselves on their kindness to their children's friends. Jessica says she's always had an open door policy when it comes to her kids' friends. If it there is a kid in her orbit who needs extra mothering, Jessica is committed to providing that mothering.

 

      And to that end, over this past winter, they allowed a teenage friend of one of their sons to stay in their house. It was winter. He had fallen on hard times. He told them that he was homeless, his mother was dead, he had nowhere to go. And as winter came, it was cold. And Jessica and Kenny are kind, and so they let this kid sleep on their couch for somewhere between four and five days a week. He was still kind of a transient, but he had a safe place to stay.

 

      Their son's friend proved to be a poor houseguest. Among other things, they subsequently discovered that his mother was, in fact, very much alive and living not that far away. So he lied to them about a number of things. Jessica caught him trying to steal from her. And eventually, Jessica and Kenny kind of reached their wit's end with the kid and kicked him out. He was a bad seed. They didn't want him around anymore.

 

      But just before they kicked him out, it turns out he had also committed a burglary. He had burgled a restaurant on the other side of town in the middle of the night, apparently twice in the same night, and was, in short order, caught by the police, arrested, and as far as the State of Illinois was concerned, was a crime not worth a lot of time or trouble. Within 30 days, this kid had pleaded guilty, was sentenced to probation, and was back out on the street. Not in Jessica and Kenny's house where he was no longer welcome, but back out on the street.

 

      And that is where his story with Jessica and Kenny ends. And Jessica and Kenny thought it was the end of the story entirely until about a month after the burglary when Jessica ran into a police officer who expressed surprise that she and Kenny were still living in their house. "Why aren't you evicted yet?" he said. And Jessica said, "I don't know what you mean. My landlord hasn't told me I'm evicted." And the police officer said, "No, you don't understand. I, personally, am evicting you. You have to get out of your house."

 

      And the officer went on to tell Jessica he was going to go find her landlord and arrest him for failing to evict them from their home. And it turned out the city had made some mistakes with service, but there was, in fact, a letter out there purporting to compel Jessica and Kenny's landlord, a guy named Bill Campbell, to evict them from their home where they've lived for about two years now.

 

      And it's worth kind of taking a step back to ask what is going on? In what world does a city government order a landlord to evict particular tenants in the absence of any suggestion that those tenants have committed a crime? And there's no suggestion, I should say, that Jessica and Kenny knew anything about the burglary, that they participated in the burglary, they were in any way involved with the burglary. It's just that when their son's friend committed the burglary, he happened to be staying with them. And all of this comes about because Granite City has what's called a crime-free multi-housing ordinance.

 

      Crime-free multi-housing ordinances have a somewhat convoluted history in American law. They trace their roots back to the early 1980s when public housing authorities started to adopt what were called "one-strike" rules. There was some concern that public housing units were becoming sort of havens of crime, that public housing authorities wanted to do something to turf out bad apples and keep good apples. And they adopted one-strike policies. And under one-strike policies, an individual could be evicted if any member of their household was convicted of a crime.

 

      And people challenged these, and there are arguments on both sides of kind of the merits of these as applied to public housing. But essentially, people said, "Wait a minute. You can't evict me because someone else committed a crime. I'm innocent." And the counterargument was, "Well, someone in your household committed a crime and we want to keep our entire housing unit crime-free. So if you allow a criminal into your home, we're going to cancel your lease. We're going to throw you out."

 

      The case went up to the U.S. Supreme Court in 2002 in a case called HUD v. Rucker. And the Supreme Court signed off on these schemes, but very explicitly signed off on them because in this context, the government was acting as a landlord of property that it owns. And if the government is acting as a landlord, the due process clause doesn't prevent the government from adopting lease conditions that say, "You can't let a criminal stay in your home. And if you let a criminal stay in your home, we're going to use our power as landlord to evict you." The Court was very clear that the analysis could well be different if the government were using its regulatory power, if it were acting as sovereign and trying to regulate how private citizens conducted themselves.

 

      But here, the government was acting as landlord, and therefore, it had the same powers as any other landlord. A landlord is free to tell you that you can't have criminals in your home, just as the landlord is free to tell you that you have to keep your grass cut a certain length on pain of eviction. And that was the end of that case.

 

      But that is where the development of the law starts to get weird because municipalities across the country largely, as far as I can tell, at the behest of a non-profit group run out of Mesa, Arizona, took the Supreme Court's decision in Rucker as a green light to impose these regulations on the private sector. And you start to see these crime-free multi-housing ordinances crop up in city after city all across the country, essentially adopting the one-strike law but as applied to private landlords.

 

      But there are two things about the early crime-free multi-housing ordinances that are dramatically different from what we seen in Granite City. And it's this difference that, I think, really creates interesting constitutional issues that up to now have mostly passed under the radar. But the original concept of the crime-free multi-housing ordinance as it was conceived of in Mesa and as this non-profit group kind of spread it across the country, was twofold. One, as evidenced in the name, it was multi-housing. It was designed to regulate landlords of buildings that had more than one unit. And it was voluntary.

 

      The idea behind these programs is that landlords who own big apartment buildings would like to be able to advertise to tenants that they're a safe place to live. They'd like to be able to have a sticker on the window that says they're part of the crime-free program. And so they operate as an exchange. The landlord is willing to enter into the crime-free program. The landlord promises to evict tenants if members of their household commit a crime. And in exchange, they get a sticker that says they're crime-free multi-housing, and therefore, that should, in theory, at least, allow them to attract more tenants, maybe charge a higher rent. And that's the rough exchange.

 

      At some point, after the initial adoption of these laws, they metastasized in to the sort of law that we see in Granite City. The law we see in Granite City is different both in that it no longer applies to multi-housing, but it applies to all rental property in the city. And two, it is no longer a voluntary program but is, in fact, a mandatory program. Under Granite City law, any landlord who rents property, rents residential property, is required to, at the command of the city, to evict any tenant upon the city's assertion that a member of that tenant's household, which could be a member of their family or, as in the case of Jessica and Kenny, just an overnight guest, has committed a crime anywhere in the city.

 

      So this is not nuisance abatement. The allegation here is not that anyone is currently maintaining a nuisance on the property. The kid in question is long gone from Jessica and Kenny's house and, I think, from Granite City entirely at this point. It's not that he's still there. It's that he was there at the moment he committed the crime, and that requires eviction. A landlord who fails to evict a tenant at the command of the city is subject to fines and subject, eventually, to just the revocation of his license to rent property altogether.

 

      And this creates, at least in the view of the Institute for Justice, a number of fascinating constitutional problems that mostly seem to have gone not unremarked, but unlitigated. There's been, as you might expect, an awful lot of litigation about crime-free housing ordinances dating back to the 1980s. But a lot of the litigation about crime-free housing ordinances focuses on the Fair Housing Act, focuses on the idea that these ordinances are kind of a subterfuge to sneak racial discrimination into local rental regulation, that they're sort of creating a disproportionate impact on poorer citizens or on racial minorities.

 

      But it seems, at least to us, that there are more fundamental constitutional problems and largely that the constitutional problems that the Supreme Court itself pointed to in the 2002 Rucker case when it said the government could do this as landlord in the first place. And I think there are three that are the most interesting. The first is a basic due process problem. Fundamentally, what the government is doing when it orders a landlord to evict a tenant because of the crime of a member of the tenants household is engaging in collective punishment. If there's any fundamental principle of our criminal justice system, it's that no one should be punished for a crime that someone else committed.

 

      The whole point of the entire panoply of due process protections that we have evolved since the time of Blackstone is to ensure that someone who's being punished is being punished for something they did, or at least something that we can be reasonably confident they did, something the state can come forward with some proof that they did. But here, there's not only no proof that Jessica and Kenny have done anything wrong, there's no allegation that Jessica and Kenny have done anything wrong. All the parties agree that there's no allegation that they had anything to do with the burglary, that they in any way engaged in a conspiracy or benefitted from the burglary. By the time their son's friend was arrested for the burglary, they had already made the determination to kick this kid out for other reasons.

 

      But that doesn't matter under Granite City's crime-free ordinance. Granite City's crime-free ordinance says he was a member of their household; even though he didn't sleep there full time, he slept there enough. And since he slept there enough, he's a member of their household. And since he committed a crime, that means the whole household has to be turfed out. That creates a due process problem in the sense that it's collective punishment.

 

      It also creates a due process problem in that it is fundamentally irrational because the only thing that Granite City's ordinance says is that Jessica and Kenny have to be evicted. Jessica and Kenny are immediately allowed to rent any other property they want in Granite City. They could rent another property from the same landlord. If the house were a duplex instead of a single-family home, the landlord could comply with the ordinance by just moving them into the other half of the duplex. And once they're out, once the landlord has complied with his duty under the ordinance to evict them, the landlord is allowed to rent his home to anyone he wants. He could, in fact, under the ordinance, literally rent the property to the teenager who committed the burglary in the first place. The actual burglar is allowed to rent Jessica and Kenny's home, but Jessica and Kenny are no longer allowed to rent their home simply because the crime was committed while they were the lessees.

 

      Which leads us to what we contend is the second major constitutional problem here, which is a problem of takings law. And it's this problem that initially got us at the Institute for Justice interested here because this, I think, is part and parcel of a broader sort of municipal intransigence and refusal to recognize the fact that renters, in fact, enjoy property rights just as homeowners do.

 

      Jessica and Kenny don't own their home. They rent it on what's called an installment contract. An installment contract is sometimes called a "poor man's mortgage," but it's essentially a rent-to-own agreement for real estate instead of for a washing machine or anything else you rent to own. And under the terms of the contract, they are slowly building equity in the home. And these arrangements are common as people kind of improve their credit in the hopes of getting a bank loan or as people just lack the money for a down payment entirely and build up equity in the home over time by paying a little more than they would pay just to rent the home.

 

      That is a property interest, just as a leasehold is a property interest, just as a deed is a property interest. And Granite City's ordinance says that because they don't hold title to the home, they must be evicted. That's a taking. A leasehold is a property interest. Jessica and Kenny's installment contract is a property interest. And yet, Granite City's ordinance, which compels that they be evicted over the objection of their landlord, extinguishes that property interest. Nowhere in the ordinance, and nowhere in just the behavior of any municipality that has laws like this, have I seen any acknowledgement that this is a property interest.

 

      It seems to be that the attitude of cities adopting these is they seem to tacitly recognize that they couldn't do this to a single-family home. If you had a single-family home that you owned, even if you owned it subject to a mortgage, there seems to be universal recognition that a municipality couldn't turf you out and couldn't order your bank to foreclose on your mortgage simply because your spouse, or your child, or your child's friend committed a crime. But there seems to be no kind of reckoning with how that fact squares with these ordinances that have cropped up all across the country insisting that people can be evicted, and that landlords can be compelled to evict them simply based on exactly the same fact.

 

      But if the underlying wrongdoing is not enough to extinguish the deed property interest, it's not entirely clear to me why it would be enough to extinguish the property interest created by the leasehold. Now, to be clear, a landlord, as the Supreme Court has said, is free to evict people who harbor criminals in their homes, or who don't cut their grass, or who engage in any other kind of behavior that is prohibited by the lease. But what we have here is a landlord who affirmatively does not want to evict his tenants. Bill Campbell, who is also an Institute for Justice client, thinks Jessica and Kenny are good tenants. To the extent they might have violated their lease, he has no desire to actually act on any violation of the lease. Any time he's had any problem with them, he's written them a letter, they've corrected the violation, and as far as he's concerned, they're not currently in violation of the lease.

 

      That's enough for him. That's enough for Jessica and Kenny. That is not enough for the city of Granite City which takes the position not only that any breach in the lease makes the lease voidable, but actually takes the position that any crime committed affirmatively requires Bill himself to initiate eviction proceedings against his will and also without any financing from the city, at his own expense. That is a taking. It's a taking of Jessica and Kenny's property interests, and it's a taking of Bill's interest in continuing to enjoy the benefits of the lease agreement he has entered into. He's a nice guy and he likes his tenants, but also, to be frank, he likes not having an empty house that isn't generating any income and enjoys the fact that his house is currently generating income. That's a property right that the government is in the midst of taking away from him.

 

      And the third kind of foundational problem that we see here is the violation of the Equal Protection Clause. The Equal Protection Clause requires that government not make irrational distinctions between people in enforcing its laws, and it particularly forbids such distinctions from being drawn as applied to fundamental rights. But your property rights are fundamental rights. And the only reason that Jessica and Kenny are subject to eviction under Granite City's crime-free housing ordinance is that they didn't have the money for a down payment. They didn't have the money for a down payment, and therefore, instead of holding title in the house subject to a mortgage lien, the title to the house remains with the landlord while they occupy it pursuant to an installment contract.

 

      But there's no kind of crime-busting reason to distinguish between owner occupied housing, housing held subject to a mortgage lien, and housing that is leased or housing held subject to an installment contract. That simply on the municipality's own say-so is relegating particular property rights to lesser status, not based on any Illinois law that says a leasehold is not a property interest. To the contrary, in Illinois, as in every other state I'm aware of, a leasehold is a property interest. It can be sold. It can be transferred. It can be condemned. It can be subject to civil forfeiture. It's a property interest just like any other, but Granite City, using only its municipal powers, has decreed it to be a lesser property interest that can be extinguished on the grounds that the municipality has ordered it be extinguished.

 

      That is an equal protection problem. The city cannot, on its own steam, rearrange property rights and essentially create its own hierarchy of property rights where some property rights will receive the protection we expect property rights to have and others will be stripped of that protection strictly on the city's own say-so. So the Institute for Justice has filed a federal lawsuit in the Southern District of Illinois on behalf of Jessica and Kenny and their landlord, who, again, wants them to stay and wants to keep getting rent for his property, raising all of these claims and seeking a preliminary injunction that will keep Jessica and Kenny in their home throughout the pendency of the lawsuit.

 

      But I think this has broader implications than just whether one family in Granite City, Illinois, gets to stay in their home because these laws are exploding all across the country. It's hard to find many municipalities that have regulations like this much before the early 2000s, but the number of municipalities that have these regulations now stretch well into the thousands. It is the trendy new crime fighting regulation that seems to be cropping up in city after city. In fact, the very week that IJ filed our lawsuit, an Illinois state senator sponsored a public forum discussing Granite City's crime-free housing ordinance and how it should be used as a model for other cities in Illinois to adopt in order to reduce crime.

 

      And I think, fundamentally, these are spreading mostly because these concerns are not being raised. For the typical landlord, it is probably easier to acquiesce in a city's command to evict their tenants. And frankly, once the landlord acquiesces, the tenants don't have much to say. A landlord who wants to evict the tenants is going to get to evict the tenants. But what's going on beneath the surface is actually a large-scale depravation of individual property rights that's part and parcel of a widespread refusal we have seen to recognize the rights of renters and the rights of property owners to rent their property in the first place.

 

      We see that here in Granite City's crime-free housing ordinance, but we see it all across the country with other rental regulations. We have seen it in city after city as municipalities adopt mandatory rental housing inspection laws that require occupied rental units to be inspected annually or biannually by government officials without any kind of Fourth Amendment warrant on the sole grounds that they're rental housing, and that rental housing has to be inspected to make sure it's in compliance with the housing code. Again, if the occupants had title to the property, there'd be no question that government officials couldn't simply barge in without probable cause. But because they're renters, municipalities take the position that renter's Fourth Amendment rights are diminished, notwithstanding the fact that renters, in fact, have a property interest in their home.

 

      Similarly, we see these in other cities. We're just in the process now. We won a victory in the Second Circuit just a few months back in a class action we have challenging New York City's compulsory eviction program in which renters, both residential and commercial, were not only compelled to evict family members from their own home, but many commercial establishments were sort of bullied on pain of avoiding compulsory eviction to, for example, permanently waive their Fourth Amendment rights or even install permanent security cameras that the NYPD would have permanent access to within their business, again, on this premise that renters lack the sort of foundational property rights that we see if people have title.

 

      But that simply is incorrect. There's no magic to having title to a piece of property. Title can be divided. Title can be leased. Title can be split. And the ability to do that is foundational to having property in the first place, and you have to be able to do that without somehow removing the constitutional protections that run with property in that land in the first place.

 

      So we think it is a symptom of a broader problem, and we also think, frankly, that it is the kind of policy that sounds attractive when there's no one making the actual constitutional argument on the other side. Again, these started out as voluntary programs. They started out as ways to incentivize landlords to take a more active hand in who was renting their property. And once they morph into mandatory programs, they again have that same kind of patina of reasonableness. I think a lot of municipal officials look at it, and they say, "Hey, here is a low cost, in fact, essentially a no cost way for us to try to fight crime. We don't have to lock more people up. We can try to disincentivize crime by punishing people who were near the criminal, not while he committed the crime, but at some point, contemporaneous with him becoming a criminal." And it feels very attractive.

 

      And I think the only reason it feels very attractive is that systematically, for the past 15 years, there hasn't been much of a voice for the affected landlord and renters. And that's what IJ is trying to do by moving into this area is take a stand for property rights more broadly and make sure that the property rights implications of these policies are getting a full and fair hearing in the federal courts, which, notwithstanding the fact that the only time the Supreme Court has looked at this issue, it has strongly intimated that IJ's position is correct, that intimation has not been picked up.

 

      And in fact, the Supreme Court's 2002 decision is routinely pointed to by cities as the justification for these programs in the first place. The Supreme Court has said that it's perfectly constitutional to have one-strike laws, and therefore, we are perfectly justified in having our own one-strike law, just papering over the fact that the Supreme Court has signed off on the government as landlord having these policies, and the policies cities are adopting is regulating the private relationship between landowners and their tenants and forcing evictions over the objection of the landlords.

 

      So that is basically where things stand. This is, I think, at least from my perspective, an issue that has flown very much under the radar. A year ago, I didn't know what a crime-free housing ordinance was, and I was shocked to learn how widespread they are, how many thousands of them there are throughout the country, and how comparatively little litigation there has been, despite the fact that there seem to be, at least to my eye, very serious constitutional problems with them. So I think it's an area you're going to hear a lot more about than has been the case. It's been growing under the radar for many years now, and I think just now is when the spotlight of national attention is starting to turn to it. I think you're going to see a lot more public debates over the constitutionality and over the many thousands of cities that have managed to adopt these in the past 15 years or so.

 

      So with that, having kind of taken up half an hour of your time with the bird's eye view, I'm happy to open the floor to questions or discussion to the extent we have questions from the room.

 

Wesley Hodges:  Thank you so much, Bob. We really do appreciate your remarks. Now, Bob, while we wait for any questions from the audience, I do want to draw your attention to this question. How has the other side responded in the lawsuit so far?

 

Robert McNamara:  That's a great question, and I suppose I should, in fairness, give them not equal time, but some time. So the lawsuit was just filed, and they haven't filed any formal response in court. But the response they've given in the media is that the crime-free housing ordinance gives them a way to eliminate what they view as problem households. And the response they've brooded about to reporters, the initial response was that they had gotten a lot of complaints from the neighborhood watch group about Jessica and Kenny, and that is why they decided to use this jurisdictional hook as a way to evict Jessica and Kenny.

 

      It subsequently emerged that when they said the neighborhood watch group, what they meant was there had been complaints on a neighborhood watch internet message board, which I think boils down to someone complaining about them on Nextdoor, and I think illustrates kind of the -- actually rather than supporting their position, illustrates an underrated problem with these laws. Granite City has sent hundreds of these eviction notices and evicted hundreds of people, but Granite City has had way more than hundreds of crimes committed within the city limits. And so the city is exercising a lot of discretionary authority over who to evict, and apparently has chosen to evict Jessica and Kenny because people said mean things about them on the internet.

 

      And this is exactly the sort of thing that property rights and due process protections are supposed to prevent. If the government's going to do something bad to you, the government needs to come forward with evidence that you deserve to have something bad done to you, that you've done something wrong. Instead, what they've set up is a system of collective punishment, and when called on it, they seem to be saying, "No, no, we don't universally enforce our system of collective punishment. We only enforce our system of collective punishment if people have said something bad about you on the internet," which I think is just the perfect illustration of why we don't give government officials untrammeled discretion to extinguish property rights on their own say-so, that we require a bit more than that. And I think that illustrates why these laws are dangerous and that they give municipal officials the opportunity to turf out anyone they don't like, but only if that person is a renter instead of an owner.

 

Wesley Hodges:  Well, very good. Thank you so much, Bob. Here is our first caller of the day.

 

Caller 1:  Hello, Bob. Very interesting presentation. Thank you. I had a question -- if you could make a distinction or help me understand the distinction between government as landlord versus government as regulator or sovereign, as you put it.

 

Robert McNamara:  Sure. I think in many ways, this is a distinction that goes to the heart of government power. And government can, in any arena, essentially do two things. The government can act analogously to how a private citizen would act, or the government can use its sovereign powers that private citizens don't have. And maybe the coolest illustration of this comes in the contest of the First Amendment. Under the First Amendment, it would be just absolutely clear that the government cannot come into my house and punish me for saying something bad about the United States Congress, that I can sit at my kitchen table, and I can pontificate about the United States Congress all I want.

 

      But if I want to march into the White House and say something bad about the United States Congress, the government can arrest me. I'm not allowed in the White House. The White House has business to conduct. And the government, in preventing me from coming into the White House, isn't necessarily using its sovereign powers, it's just saying, "We own the White House. We have purchased this piece of land. We have title to this piece of land, and so we can do things here that we perhaps can't do."

 

      And so the mere fact that government has sovereign powers, the ability to regulate private conduct, doesn't necessarily limit the government's ability to do what it wants with its own stuff. It does in certain contexts. It can't engage in viewpoint discrimination in limited public fora and so on, but if we want government to be functional at all, the government does need to be able to operate with its own property. And when it operates with its own property, it has a freer hand than when it uses the compulsory power of government to dictate to private citizens what they are to do.

 

      And I think that's exactly what's going on here. Bill Campbell, Jessica and Kenny's landlord, does not want to evict them. He has told me he does not want to evict them. He likes them as people. He likes them as tenants. But Granite City doesn't care. It doesn't matter to Granite City, and it doesn't matter for purposes of Granite City's law what Bill wants. Bill is compelled to evict them as a matter of law. And I think that goes, essentially, to what a conception of limited government is. If you accept as a premise that the government acting as landlord can write whatever it wants into its lease, extending that principle to the government interacting with any private landlord is essentially the difference between a system of limited government and a system of feudalism.

 

      The basic premise of Granite City's ordinance is that Granite City owns all of the land in Granite City, and that it only allows you to rent out your land at its sufferance, and that it can compel you to not rent out your land just as freely as it could if it owned the underlying land. And that's not true. If Granite City wants to purchase land and run its own housing business, it's free to do what it wants, just as if Granite City wanted to open its own grocery store and not carry cantaloupes. There wouldn't be a very serious constitutional argument that the Granite City owned grocery story had to sell cantaloupes. But if Granite City wants to say, "No grocery store in city limits may carry cantaloupes," it has a much higher hill to climb in explaining why it's exercising its sovereign power over private citizens.

 

      Now, you can question whether it's a good idea for the government to be in the grocery store business in the first place, just as you can question whether it's a good idea for the government to go into the housing business. But I think it's hard to deny that there's a big difference between the decisions you're going to allow government officials to make once they're in the grocery store business or the housing business and the decisions you're going to want to allow government officials to make when they're telling people, private citizens who have gone into that business, how they're allowed to conduct themselves.

 

Wesley Hodges:  Thank you, caller. And here is our second caller.

 

Caller 2:  Not every time someone's negatively impacted is it a punishment. So how do you know that this eviction is a punishment? And also, they're being evicted because they violated the terms of the lease. Can a bank foreclose on someone for violating terms?

 

Robert McNamara:  That's an important distinction. A bank can absolutely foreclose on people for violating the terms of their mortgage, and a landlord can foreclose on people for violating the terms of their lease, but I think that's the jump that you see between these programs designed as voluntary programs and these programs designed as mandatory programs. With any contract, if one party is in breach, the other party to the contract has the option to enforce their rights under the contract. But they also have the right to let it go, to not enforce their rights because they think they're still getting a benefit from the contract. And that's the discretion that mandatory crime-free ordinances take away.

 

      Certainly, if Jessica and Kenny's landlord wanted to evict them, wanted to say, "Hey, I wrote a provision into the lease that says I can evict you if anyone in your household commits a crime, and I want to invoke that right, and I want you gone," that's a horse of an entirely different color. But in fact, what he's saying is, "I don't see any current violation of the lease here. To the extent that there is a violation of the lease, it's been cured, and I have no desire to evict you." But he's being compelled to evict them, or the city's attempting to compel him to evict them under the crime-free ordinance.

 

      And so I think eliminating that discretion is where the constitutional problems arise. If you have a private landlord who wants to evict private tenants, then you just have a private landlord who wants to evict private tenants. If you have a private landlord who wants to keep his tenants and the government is attempting to compel their eviction, then you have state action. Then, I think, you have the constitutional problems we're talking about, and the government's required to comply with the requirements of due process and of equal protection and of all the rest.

 

      And I think that really goes to how little mandatory laws like this accomplish. If the government wants to encourage landlords to evict tenants when a member of their household commits a crime, that's perhaps debatable, and you have arguments under the Fair Housing Act of how much they can do, but landlords mostly seem to comply with those sort of voluntary inducements. The only thing you're layering on by adding a mandatory requirement like Granite City has is giving the city the power to override the judgement of the landlord. When the landlord says, "No, these are perfectly good tenants. And in fact, the criminal is long gone, so I don't see the point in evicting them," the city can say, "We don't care about your judgement of what to do with your property. What we care about is our judgement of what to do with your property."

 

Caller 2:  How do you know it's a punishment and not some sort of civil policy?

 

Robert McNamara:  Respectfully, I think that's kind of a distinction without a difference. It's certainly not a criminal punishment. They're not being incarcerated, but they are being thrown out of their home. They're having a property right extinguished, and they're having a property right extinguished, really, for no reason I can see that is not punitive. There's no forward-looking remedy here. It would be one thing if the city announced that they were maintaining a nuisance and said, "You're maintaining a nuisance in your home, and so you have to go because we want to eliminate the nuisance on a forward-looking basis."

 

      But here, there's, again, no dispute that the kid who was the problem is gone. He no longer lives in the house, and so you're not eliminating anything on a forward-looking basis by evicting them. The only thing you're doing is imposing a sanction for conduct in the past, the conduct of letting this kid sleep there. And that is a punishment. It's certainly civil in nature. It's not criminal, but it's nonetheless punitive.

 

      I think it's a very different analysis if the government is acting on a forward-looking basis and saying, "We're trying to regulate to prevent this conduct in the future. We're trying to regulate to eliminate this nuisance." But the only thing they're doing here is looking backward, and they're imposing a sanction based on activity in the past on people who didn't actually engage in the activity. As far as I can tell, that's a punitive sanction.

 

Wesley Hodges:  Thank you, caller. We do appreciate you participating. Here's our next caller.

 

Caller 3:  Assuming this is what Granite City is saying, what in the program gives it the right to exercise discretion in an otherwise facially mandatory program?

 

Robert McNamara:  The program is only mandatory once the city sends the landlord a demand to evict the tenants. So the program's mandatory on its face, but it's only mandatory once the city issues the demand. And as far as I can tell—and I'm sure this is something we'll be discussing with them in great detail—as far as I can tell, they just don't always generate the demand. Someone within Granite City is exercising discretion about whether a particular crime warrants sending a letter insisting on eviction. And I don't know what basis they have for doing it. I'm just going off the fact that I have a list of all of the eviction notices that they've sent out, and that list is massively underinclusive of all the crimes committed in Granite City. So it may be that sometimes they just don't track down where the person lived. It may be that sometimes, they just don't bother serving the landlords.

 

      I mean, what actually happened here may be instructive for how underinclusive the program is. The only reason that Jessica and Kenny ended up getting evicted is that Jessica ran into this police officer who remembered her and realized that he wanted her evicted, and then subsequently realized that the city had failed to actually serve any letters mandating that eviction. He had said at the time he was going to go arrest her landlord. What he actually did is went back, realized no one had gotten a letter mandating eviction, and then went and served those letters. If he had never made that encounter, it's entirely possible that Jessica and Kenny wouldn't be being evicted right now because no one would have served the letter.

 

      So I can't say whether it is deliberate on the city's part, whether it's just a matter of the city not getting around to serving letters, whether it's the city affirmatively deciding not to serve letters. But I can tell you that if every single person who committed a crime in Granite City got evicted, or their family or wherever they were staying got evicted, there would be a lot more evictions than you see. It would be in the many thousands instead of in the hundreds.

 

Caller 3:  Can I follow up with one? If the city is, in fact, exercising discretion, doesn't that constitutionally mandate some form of process before eviction as in the form of show cause why you should not be evicted?

 

Robert McNamara:  I think it absolutely should. If the city has some kind of secret criteria it's using to decide whether people should be evicted, I think tenants are absolutely entitled to due process to figure out what those criteria are and whether they meet them. Under the ordinance, the only hearing you get once you're served with this compulsory eviction notice, you're allowed to file a grievance and essentially have an appeal in front of an administrative officer.

 

      But that appeal is just confined to the question of whether you qualify under the ordinance, whether, in fact, a crime was committed by a member of your household. It doesn't go into any -- whatever the secret criteria are that determine whether the eviction notice was generated and served in the first place. Those are entirely exogenous. And to the extent there are these determinations being made, they are being made in secret based on undisclosed criteria and without any kind of due process attached to them, which I agree is a significant problem.

 

Wesley Hodges:  Well, very good. Looks like we do have one more question. Let's go to that caller.

 

Scott:  Hi. This is Scott, and I do quite a bit of evictions. And typically, there is a difference in the criteria the city utilizes as opposed to what the criteria is by state law for the landlord to do an eviction. And I was wondering in those cases that you've looked at whether or not some of those landlords have failed in their ability to evict the tenant and what actions the city took after that.

 

Robert McNamara:  That is an interesting question. It's actually one of the understated wrinkles in the laws that the city, as you correctly point out, isn't actually evicting people. The city is ordering the landlord to use the landlord's private power to evict them. And I have yet to see an instance where the landlord actually tried and was unsuccessful.

 

      In a lot of these cases, what seems to happen is the landlord evicts people informally, which, understandably, this is a scary process for tenants. At least in the case of Jessica and Kenny, the notice of eviction was personally served on them by the police. Officers banged on their door and handed them a letter informing them that they had been evicted. And then a few days later, banged on their door again, looking for Bill Campbell, who owned the house so that they could serve him with a letter saying that Jessica and Kenny had to be evicted. And I think a lot of people respond to that by just kind of leaving on their own steam.

 

      When people do have to be evicted, as far I have seen, the landlord is generally successful in evicting them, though obviously, that costs the landlord some time and money, whether they do it themselves or they hire counsel for the eviction. I think an understated burden of all of this -- it essentially takes the city's priority, which is the city wants these people out, and then imposes all the costs of that on the landlord, even if the landlord wants them to stay. And so frequently, people seem to just kind of abscond in the night under pressure, but when they have actually had to be evicted, as far as I can tell, the landlord is generally successful in evicting them under the lease.

 

Wesley Hodges:  Thank you, caller. Seeing no more questions from the audience, Bob, I'd like to turn the mike back to you. Do you have any additional thoughts or any closing thoughts for us today?

 

Robert McNamara:  I certainly appreciate the thoughtful questions, and I appreciate everyone's time and attention. Again, this is, I think, a symptom of a broader problem we're seeing in municipal regulation, and one that mostly seems to go unremarked in part because, frankly, renters have less political power than homeowners do. But despite having less organization and less political power, they don't have fewer constitutional rights.

 

      And I think this is an example of a case that hopefully is going to go a long way towards reaffirming in the minds of municipal officials a principle that's actually not at all legally controversial, and that is that property rights are property rights, and rented property rights are protected by the Constitution every bit as much as fee simple ownership is. That's what we're hoping to establish with this. That's the right we're hoping to vindicate, and I very much appreciate everyone's interest in the topic.

 

Wesley Hodges:  Well, Bob, we have really enjoyed the hour, and we're so grateful for your time. On behalf of The Federalist Society, I would like to thank you for the benefit of your valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.