MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 98104 Phone: (206) 464-1519 Fax: (206) 624-7501 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Chief Civil Judge Mar. 2, 2007 1:30 p.m. Rm. W-1060 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING TERESA XXXXXXX, Plaintiff, vs. SEATTLE HOUSING AUTHORITY and TOM TIERNEY, Executive Director of the Seattle Housing Authority, in his Official Capacity Defendants. No. 06-2-36272-1 SEA PLAINTIFF TERESA XXXXXXX’ MOTION FOR PARTIAL SUMMARY JUDGMENT -- CR 56(a) I. RELIEF REQUESTED Plaintiff Teresa XXXXXXX seeks, pursuant to RCW 7.16.120 and CR 56(a), an order reversing the informal hearing decision (exhibit 310-22 of the administrative record) by Defendant Seattle Housing Authority (SHA) that upheld termination of her Section 8 Voucher. II. STATEMENT OF FACTS Since 2001, Plaintiff Teresa XXXXXXX has participated in the Section 8 Housing Choice Voucher Program (“Section 8” or “the program”), a federal rental assistance program of the U.S. Department of Housing & Urban Development (HUD). See 42 USC 1437f(o); see also 24 CFR 982.1 et seq. HUD operates this program by apportioning funds to local “public housing
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MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Northwest Justice Project
401 Second Avenue S, Suite 407 Seattle, Washington 98104
Phone: (206) 464-1519 Fax: (206) 624-7501
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Chief Civil Judge
Mar. 2, 2007
1:30 p.m.
Rm. W-1060
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
TERESA XXXXXXX,
Plaintiff,
vs.
SEATTLE HOUSING AUTHORITY and TOM
TIERNEY, Executive Director of the Seattle
Housing Authority, in his Official Capacity
Defendants.
No. 06-2-36272-1 SEA
PLAINTIFF TERESA XXXXXXX’
MOTION FOR PARTIAL SUMMARY
JUDGMENT -- CR 56(a)
I. RELIEF REQUESTED
Plaintiff Teresa XXXXXXX seeks, pursuant to RCW 7.16.120 and CR 56(a), an order
reversing the informal hearing decision (exhibit 310-22 of the administrative record) by
Defendant Seattle Housing Authority (SHA) that upheld termination of her Section 8 Voucher.
II. STATEMENT OF FACTS
Since 2001, Plaintiff Teresa XXXXXXX has participated in the Section 8 Housing
Choice Voucher Program (“Section 8” or “the program”), a federal rental assistance program of
the U.S. Department of Housing & Urban Development (HUD). See 42 USC 1437f(o); see also
24 CFR 982.1 et seq. HUD operates this program by apportioning funds to local “public housing
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authorities (or “PHAs”),” which in turn administer Section 8 Voucher programs in their local
communities. See 24 CFR 982.1 et seq. A participating family obtains rental housing from a
private landlord, pays part of the rent on its own (between 30-40% of a family’s income), and
receives a Section 8 subsidy from the PHA; the subsidy usually covers the difference between
the family’s contribution and the total overall rent for the unit. See 24 USC 982.451. Defendant
Seattle Housing Authority (SHA) is the PHA that administers Ms. XXXXXXX’ Section 8
Voucher.
In July 2004, Ms. XXXXXXX moved into a duplex at 411 NW 100th
Place in Seattle, a
property owned and operated by Tom Chew, using her voucher to assist with her rent. Ex. 74-
75. Shortly after moving there, Ms. XXXXXXX began reporting complaints to SHA about
various problems in her neighborhood, particularly concerning Keyonna Sterling, the tenant
occupying the other unit of the duplex. Ex. 4, 6-14, 19-20, Tr. at 6-10, 17, 25-30. SHA
determined Ms. XXXXXXX’ complaints concerned “landlord-tenant issues” outside the scope
of SHA’s operations, and therefore decided not to intervene. Ex. 74; Tr. at 26, 29-30, 74-76,
140.
However, when the complaints continued, Mike Jung of SHA decided he would try to
assist Ms. XXXXXXX anyway; Jung instructed Ms. XXXXXXX, Chew, and Sterling to appear
at a meeting with SHA on September 21, 2004 (the 2004 conference). Ex. 5, 74. The purpose
for the meeting was “to attempt to negotiate an agreement” between Ms. XXXXXXX and
Sterling. Ex. 5, 74. Upon learning of the conference, Ms. XXXXXXX telephoned Jung and
asked not to attend the meeting. Tr. at 166-67, 205-06. Jung replied that Ms. XXXXXXX did
not have to attend the meeting, but stated that he would not assist with her complaints unless she
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did. Tr. at 166-67, 205-06. Ms. XXXXXXX did not attend the meeting; her complaints largely
subsided afterward. Tr. at 78-79, 127-28, 167; ex. 23, 33-34.
However, in late 2005 and early 2006, Ms. XXXXXXX resumed making complaints to
SHA alleging wrongdoing by Sterling. Ex. 33-61, 63-68, 71; Tr. at 167-68. As before, SHA
advised Ms. XXXXXXX her complaints involved subjects outside SHA’s purview of
responsibility, and suggested she either work with Chew to solve the problem, “live with and
accept the situation as it is,” or move away. Tr. at 30, ex. 52-53. Ms. XXXXXXX nevertheless
continued reporting complaints to SHA (about Sterling). Tr. at 179-80.
On March 15, 2006, SHA received a complaint from Sterling alleging that Ms.
XXXXXXX had a son living in her unit without authorization. Ex. 222. SHA investigated
Sterling’s claim and determined the allegation was unfounded. Tr. at 134-37. SHA had no
indication Ms. XXXXXXX had done anything else that was unlawful or against the rules of her
tenancy. Tr. at 137. Nonetheless, on the same day Toni Manjarrez of SHA wrote that that
Sterling and Ms. XXXXXXX “need[ed] to be reined in. I want conferences for both of them set
up … If XXXXXXX fails to show up, we’ll start the termination process and see if that doesn’t
motivate her.” Ex. 222, Tr. at 135-36. By that date (March 15, 2006) Manjarrez and other SHA
personnel were aware that Ms. XXXXXXX had certain health problems including chronic
depression, post-traumatic stress disorder, and migraine headaches, but SHA felt no obligation to
avoid summoning her to conferences because she had not made a written request for a reasonable
accommodation of that nature. Tr. at 143-44, 202, ex. 92. Two weeks later (March 29, 2006),
Vicki Seeber of SHA instructed Ms. XXXXXXX to appear for a conference on April 13, 2006
(the 2006 conference). Ex. 62. According to SHA, the 2006 conference was intended “to defuse
the situation” between Sterling and Ms. XXXXXXX. Ex. 74.
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SHA changed the meeting date to April 18, 2006. Ex. 68. Ms. XXXXXXX appeared at
SHA to meet with Seeber on April 18, but Seeber declined to meet then and rescheduled for
April 20, 2006. Ex. 69, Tr. 38-39, 182-84. Later on April 18, Ms. XXXXXXX advised SHA
that Seeber had been rude in their encounter, and requested she not have to meet with Seeber on
April 20. Ex. 70. The next morning, April 19, Manjarrez called Ms. XXXXXXX by phone and
discussed Seeber’s behavior and several other issues. Tr. at 185-95, 208-09. Based on that
conversation, Ms. XXXXXXX formed an impression that the conference would be postponed,
but Manjarrez denied having postponed the meeting. Tr. at 191-97, 208-09.
Ms. XXXXXXX did not appear for a meeting on April 20, 2006. Tr. at 191-97.
Manjarrez then notified Ms. XXXXXXX that SHA intended to terminate her housing assistance
for violating her Section 8 “family obligations.” Ex. 74-75. Despite issuing the termination
notice, SHA continuously indicated that Ms. XXXXXXX could retain her voucher if she were to
move to a different residence. Tr. at 70-73, ex. 82, 87. Only when Ms. XXXXXXX declined to
relocate did SHA proceed with the termination. Tr. at 53, 62-63, 66, 70; Ex. 87, 97-98.
Ms. XXXXXXX contested the termination at an administrative tribunal called an
“informal hearing” between October 27 and November 3, 2006. Ex. 301-22. Hearing Officer
Lawrence Weldon presided over the hearing and issued a ruling November 10, 2006. Ex. 301-
22.
III. SUMMARY OF THE INFORMAL HEARING AND DECISION
SHA stated the grounds for termination of Ms. XXXXXXX’ voucher in a letter dated
April 28, 2006 (the “termination notice”). Ex. 74-75, 202; see 24 CFR 982.555(c)(2). The
termination notice alleged Ms. XXXXXXX violated a Section 8 “family obligation” by failing
“supply [SHA] any information that the PHA or HUD determines is necessary in the
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administration of the [Section 8] program.” Ex. 75; 24 CFR 982.551(b)(1). The termination
notice alleged that Ms. XXXXXXX violated this obligation by missing three meetings with SHA
staff, scheduled for September 21, 2004, for May 24, 2005, and for April 20, 2006 (hereafter, the
“2004 conference,” “2005 conference,” and “2006 conference”). Ex. 74-75. At the informal
hearing, SHA further argued its Administrative Plan (“Admin. Plan,” relevant portions attached
as exhibits 106-110) authorizes SHA to terminate a family from the Section 8 program after
missing two meetings. Tr. at 88-92; but see ex. 110 (Admin. Plan authorizes termination for not
providing necessary information to SHA despite multiple opportunities, not simply for missing
conferences). SHA explained that it chose to terminate Ms. XXXXXXX’ voucher on this basis
because “[w]hen participants expect the housing authority to handle issues and don’t like it when
meetings are set up … then the housing authority can take the action to move to termination.”
Tr. at 223.
Ms. XXXXXXX contended that the 2004 and 2006 conferences did not concern
information “necessary in the administration of the [Section 8] program,” and thus a failure to
attend those meetings would not have constituted a breach of her family obligations. 24 CFR
982.551(b)(1). The 2005 meeting did concern information necessary in administration of the
program, but Ms. XXXXXXX provided the information by phone and mail, for which reason
SHA agreed to cancel the conference. Ex. 30-31, Tr. at 171-76. Ms. XXXXXXX also argued
that she had good cause for missing the 2004 and 2006 conferences, because Mike Jung excused
her from the 2004 meeting and because certain disabilities caused or contributed to her mistaken
impression that Manjarrez postponed the 2006 meeting. See Ex. 110.
More importantly, Ms. XXXXXXX contended SHA’s termination decision was
irretrievably compromised by an unlawful motive: leveraging her into moving. Ms. XXXXXXX
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contended that SHA wanted to force her into relocating (so as to no longer receive complaints
about Sterling), but having no authority to compel her to move, used the missed conferences as a
pretext to initiate termination proceedings, with the expectation that Ms. XXXXXXX would then
agree to move rather than risk losing her voucher. Ms. XXXXXXX argued that SHA’s improper
motive tainted the decision, and that termination of her housing assistance would be a grossly
unfair penalty for such a minor infraction as the missed meetings. Ms. XXXXXXX argued the
termination decision was an abuse of SHA’s administrative discretion and contrary to her
guarantee to due process of law. SHA claimed to have no opinion whether Ms. XXXXXXX
continued submitting complaints about Sterling or not, but confirmed SHA would not have
terminated Ms. XXXXXXX’ voucher had she moved. Tr. at 70-73, 75-76, 130-31. SHA argued
there was nothing unlawful or improper about using termination proceedings to induce a family
into relocating. Tr. at 71-73.
The written hearing decision upheld the termination on the basis that (i) Ms.
XXXXXXX missed all three conferences, (ii) Ms. XXXXXXX could have supplied information
necessary in the administration of the Section 8 program at all three conferences, and (iii)
therefore Ms. XXXXXXX violated her obligation to supply information (necessary in the
administration of the program) to SHA. Ex. 320. The hearing officer did not consider SHA’s
improper motive for the termination, or whether the penalty was proportionate to the offense, or
whether Ms. XXXXXXX had good cause for missing the 2004 or 2006 meetings. Ex. 320-21.
IV. ISSUES PRESENTED FOR REVIEW
1. May a public housing authority bring proceedings to terminate a family’s Section 8
Housing Choice Voucher for the purpose of motivating the family to relocate? Answer: No.
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2. Did competent and substantial evidence support the hearing officer’s findings that Ms.
XXXXXXX missed three meetings with SHA staff, and by missing those meetings failed to
supply SHA with information necessary in the administration of the Section 8 program?
Answer: No.
3. Did Ms. XXXXXXX commit a material violation of Section 8 “family obligations”
upon which SHA could lawfully terminate her participation in the program? Answer: No.
V. AUTHORITY AND ARGUMENT
At minimum, the informal hearing decision must be vacated because the decision failed
to even consider Ms. XXXXXXX’ central arguments in the case, thus depriving her of a
meaningful opportunity to be heard. See Goldberg v. Kelly, 397 U.S. 254, 267-68; 90 S.Ct. 1011
(1970); see also Housing Authority v. Saylors, 19 Wn. App. 871, 873; 578 P.2d 76 (1978).
However, for three main reasons, the appropriate remedy is reversal: that SHA failed to prove
Ms. XXXXXXX violated a Section 8 “family obligation,” that the violation SHA accused her of
was trivial and would not justify termination from the program even if she had committed it, and
that SHA pursued the termination for an improper and unlawful motive.
A. Bringing Discretionary Termination Proceedings for an Improper Motive
Cannot Be Reconciled with Ms. XXXXXXX’ Right to Substantive Due Process of
Law.
The primary reason the Court should reverse the informal hearing decision is that SHA
pursued termination of Ms. XXXXXXX’ Section 8 Voucher for an improper and unlawful
reason: SHA sought to coerce Ms. XXXXXXX into moving, despite lacking any authority
whatsoever to compel such a move. See, e.g., 24 CFR 982.551 (“family obligations” of Section
8 participants do not include moving); Tr. at 71. Whether SHA’s termination of Ms.
XXXXXXX’ voucher was tainted by an improper motive improper is a mixed question of law
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and fact, which the Court would ordinarily review by determining whether the motive, as found
by the hearing officer, was indeed “improper” as a matter of law. See Franklin County Sheriff’s
Office v. Sellers, 97 Wn.2d 317, 330; 646 P.2d 113 (1982) (in reviewing mixed questions of law
and fact, court applies the law de novo to established facts found by agency). In this case,
however, the hearing officer did not make any factual findings as to SHA’s motive for the
termination. Ex. 320-21. Nonetheless, reversal is appropriate on this contention because the
record leaves no doubt that SHA’s motive for terminating Ms. XXXXXXX’ voucher was her
refusal to move, which was an unlawful motive as a matter of law. CR 56(a).
A-1. Undisputed Facts in the Record Established that SHA’s Decision to Terminate
Ms. XXXXXXX Was Designed to Coerce Her into Relocating.
Toni Manjarrez is the SHA supervisor who decided to terminate Ms. XXXXXXX’
voucher. Tr. at 59. Manjarrez testified that she decided to terminate Ms. XXXXXXX from the
program after she did not attend the 2006 conference. Tr. at 59, 96. However, Manjarrez also
explained that she would not have terminated the voucher had Ms. XXXXXXX moved to a
different residence. Tr. at 70. In fact, SHA actually agreed to suspend the termination
proceedings in May 2006 when Ms. XXXXXXX planned to move to Tampa, Florida, in
connection with her son’s intention to attend college there. Ex. 82. And later, when Ms.
XXXXXXX informed SHA that she would be remaining in Seattle (because her son was not
awarded sufficient financial aid to attend college in Florida), SHA presented her with two
choices: move to a different residence, or be terminated from the program. Ex. 87, Tr. at 50-53
(“Ms. XXXXXXX was very aware that she was being required to move”). SHA moved forward
with termination proceedings only when Ms. XXXXXXX declined to move.1 Ex. 97-98, 202.
1 SHA first claimed the power to terminate Ms. XXXXXXX’ voucher without any further hearing whatsoever, but
that termination was overturned by this Court in Case No. 06-2-32978-3 SEA. Ex. 202.
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Thus, SHA’s statements and actions both make clear that SHA’s motive for termination was Ms.
XXXXXXX’ refusal to move.
A-2. Bringing Administrative Proceedings to Terminate Ms. XXXXXXX’ Voucher
for the Purpose of Compelling her to Relocate Is Abusive and Unlawful.
Despite SHA’s desire that Ms. XXXXXXX move, SHA, as it has conceded, has no
general authority to compel a Section 8 participant to move. Tr. at 71; see generally 24 CFR
982.551. As such, a housing authority cannot lawfully use administrative termination
proceedings as leverage to coerce a Section 8 participant into moving. See Fite v. Lee, 11 Wn.
App. 21, 27-28; 521 P.2d 964 (1974) (“proper test for abuse of process is whether the process
has been used to . . . compel the adverse party to do some collateral thing which he could not
legally be compelled to do.”). SHA’s decision to terminate Ms. XXXXXXX’ voucher was
therefore tainted by an improper motive: SHA brought the termination proceedings to coerce Ms.
XXXXXXX into moving, an unlawful and arbitrary action that constituted an abuse of SHA’s
discretion and a violation of Ms. XXXXXXX’ substantive due process rights. See Hines v. Todd