Key v. Aurora Housing Authority

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Appellate Court Date: 2020.12.29
14:12:59 -06'00'

Key v. Aurora Housing Authority, 2020 IL App (2d) 190440

Appellate Court MICHELLE KEY, Plaintiff-Appellee, v. THE AURORA HOUSING
Caption AUTHORITY and KEITH L. GREGORY, in His Official Capacity as
Executive Director of the Aurora Housing Authority, Defendants-
Appellants.

District & No. Second District
No. 2-19-0440

Filed March 17, 2020

Decision Under Appeal from the Circuit Court of Kane County, No. 16-MR-421; the
Review Hon. Mark A. Pheanis, Judge, presiding.

Judgment Order vacated.

Counsel on Richard T. Petesch and Bernard K. Weiler, of Mickey, Wilson, Weiler,
Appeal Renzi, Lenert & Julien, P.C., of Sugar Grove, for appellants.

Fred M. Morelli Jr. and Nischal Raval, of Morelli & Raval, of Aurora,
for appellee.

Panel JUSTICE HUDSON delivered the judgment of the court, with
opinion.
Justices Schostok and Bridges concurred in the judgment and opinion.
 OPINION

¶1 Defendants, the Aurora Housing Authority (AHA) and its executive director, Keith L.
Gregory, appeal from an order of the circuit court of Kane County finding that plaintiff,
Michelle Key, was entitled to housing assistance payments for a period of 22 months after a
hearing officer upheld the AHA’s decision to terminate her benefits. We vacate the order.

¶2 I. BACKGROUND
¶3 The AHA administers housing assistance benefits through the United States Department
of Housing and Urban Development (HUD) under HUD’s Housing Choice Voucher (HCV)
program. Plaintiff participated in the program, but on September 28, 2015, the AHA notified
her that her benefits would terminate on October 31, 2015, because of violations of program
rules. Specifically, the AHA asserted, inter alia, that plaintiff had blocked inspections of her
housing unit and that drug transactions had taken place there. Plaintiff requested an informal
hearing at which to contest the termination. The hearing was conducted on October 15, 2015.
On October 22, 2015, a hearing officer upheld the termination. Plaintiff then filed a common
law certiorari action against defendants seeking review of the termination decision.
¶4 Judge David R. Akemann concluded that the record did not sufficiently show that the
hearing officer had considered all circumstances germane to the termination decision or that
plaintiff had been given an opportunity to confront and cross-examine witnesses. Judge
Akemann vacated the AHA’s decision and ordered it to conduct a second informal hearing,
“which may more clearly provide a record of presentation and consideration of relevant
circumstances and evidence assuring that Plaintiff receives her due process rights.” (Emphasis
added.)
¶5 On August 31, 2017, the hearing officer once again upheld the termination. Before
reviewing that decision, Judge Akemann ordered the AHA to submit a transcript of the second
hearing. That order also provided as follows:
“[W]ithout making a finding regarding the validity of the AHA’s decision in the second
hearing, the Court can find that Key should be reimbursed for the housing allowance
she failed to receive between October 31, 2015 and August 31, 2017. When this Court
vacated the AHA’s October 22, 2015 decision, the termination was ineffective until the
decision following the 2nd hearing.”
¶6 Judge Akemann subsequently retired, and the case was reassigned to Judge Mark A.
Pheanis. On December 10, 2018, Judge Pheanis affirmed the termination decision. On
December 17, 2018, plaintiff moved for entry of an order that the AHA “[r]eveal the amount
of [her] housing allowance” and “pay her the sum of money due from October 22, 2015 until
August 31, 2017.” On April 29, 2019, Judge Pheanis entered judgment for plaintiff in the
amount of $16,368. The AHA filed a timely notice of appeal.

¶7 II. ANALYSIS
¶8 Under the HCV program, “HUD pays rental subsidies so eligible families can afford
decent, safe, and sanitary housing.” 24 C.F.R. § 982.1(1) (2015). The program is “generally
administered by State or local governmental entities called public housing agencies (PHAs),”
which receive housing assistance funds from HUD. Id. Families participating in the program

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 are obligated to notify the PHA if a family member no longer resides in a housing unit occupied
under the program (24 C.F.R. § 982.551(h)(3) (2015)), to permit the PHA to inspect housing
units occupied under the program (24 C.F.R. § 982.551(d) (2015)), and to refrain from
engaging in drug-related criminal activity (24 C.F.R. § 982.551(l) (2015)). Violation of these
obligations is grounds for termination of assistance. 24 C.F.R. § 982.552(c)(1)(i) (2015). A
participating family is entitled to an informal hearing to determine whether a termination
decision conforms to the law, HUD regulations, and PHA policies. 24 C.F.R.
§ 982.555(a)(1)(iv) (2015).
¶9 Defendants argue that the trial court’s order that the AHA hold a new hearing “did not
affect the status of [its] Order terminating Plaintiff’s benefits.” According to defendants, the
trial court’s order “simply placed the parties in the position they were in at the time Plaintiff
initially sought review before the Hearing Officer.” Defendants note that the original decision
to terminate plaintiff’s housing assistance benefits was ultimately upheld. Thus, according to
defendants, the termination decision remained in effect throughout the certiorari proceeding.
¶ 10 In response, plaintiff notes the trial court’s conclusion that, because it vacated the first
hearing officer’s decision, the termination was “ineffective” until the second hearing.
According to plaintiff, the trial court’s ruling was consistent with the due process principles
announced in Goldberg v. Kelly, 397 U.S. 254 (1970). Plaintiff cites no other basis for the
award of post-termination assistance. The sole question before us is when, as a matter of due
process, the AHA was entitled to suspend plaintiff’s housing assistance. “A procedural due
process claim presents a legal question subject to de novo review.” People ex rel. Birkett v.
Konetski, 233 Ill. 2d 185, 201 (2009).
¶ 11 Because federal constitutional principles are involved, we look to federal court decisions
for guidance. See M&T Bank v. Mallinckrodt, 2015 IL App (2d) 141233, ¶ 51 n.3 (“While
cases from lower federal courts are not binding, we may consider them as persuasive
authority.”). Ordinarily, there is no remedy for a due process violation that does not lead to a
substantively incorrect result. In the seminal case Carey v. Piphus, 435 U.S. 247 (1978), the
United States Supreme Court held that students who had been suspended from school, for
misbehavior, without due process were not entitled to damages where, had proper procedures
been followed, they would have been suspended anyway. In circumstances like those in Carey,
the deprivation of a party’s property interest is attributable to his or her own conduct. See City
of Chicago v. United States Department of Labor, 737 F.2d 1466, 1472 (7th Cir. 1984).
¶ 12 Cases like Carey stand in contrast to those in which there is a loss that is “directly
attributable to [the] procedural deprivation rather than to the conduct which caused the justified
termination.” Id. Where the loss of a governmental benefit is directly attributable to the due
process violation, the proper remedy might be to restore the benefit, at least until it is
terminated through constitutional procedure. Loss of a governmental benefit is directly
attributable to a due process violation when the violation accelerates the loss, i.e., when,
because of the improper procedure, the benefit was terminated earlier than it would have been
had the recipient’s due process rights been honored. See Lightfoot v. District of Columbia, 355
F. Supp. 2d 414, 440 (D.D.C. 2005) (and cases cited therein). In that event, the recipient is
entitled restoration of the benefit from the time of termination until “the earliest date the
discharge could have taken effect had the proper procedures been followed.” Brewer v.
Chauvin, 938 F.2d 860, 864 (8th Cir. 1991).

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¶ 13 To illustrate, in City of Chicago, a municipal employee was deprived of due process when
he was terminated without proper notice and an opportunity to respond. The employee was
terminated on July 21, 1976. The Seventh Circuit upheld a finding that, had the city used proper
procedure to terminate the employee, he would have remained on the City’s payroll through
the end of the year. City of Chicago, 737 F.2d at 1468-69. Accordingly, the employee was
entitled to back pay for the period from July 21, 1976, to December 31, 1976.
¶ 14 These cases teach that although due process violations do not negate decisions terminating
government benefits, the recipient is entitled to be placed in the position he or she would have
occupied had the termination procedure been constitutional. Put differently, whether a
termination decision is effective turns not on the constitutionality of the determination
proceeding, but on the substantive basis for the termination decision. Plaintiff has not
challenged the hearing officer’s ultimate decision upholding AHA’s termination of her housing
assistance.
¶ 15 We note that, in granting plaintiff a new hearing, the trial court did not find that she had
been deprived of due process in the first hearing. Rather, the court reasoned that the record was
insufficient to assure that she received due process. Even assuming for the sake of argument
that plaintiff’s right to due process was somehow violated, the violation could not have
accelerated the termination of her benefits. Pursuant to Brewer, plaintiff is not entitled to any
housing assistance after October 31, 2015, unless she can show that “the earliest date the
[termination of housing assistance] could have taken effect had the proper procedures been
followed” (Brewer, 938 F.2d at 864) was later than October 31, 2015. Under Brewer, the
operative date is not when plaintiff received due process but when she could have received due
process.
¶ 16 The first informal hearing took place on October 15, 2015. Even if that hearing was
constitutionally deficient, it did not lead to a substantively incorrect result. In this regard, the
AHA notified plaintiff on September 28, 2015, that her housing assistance benefits would
terminate on October 31, 2015, because she violated her obligations under the HCV program.
The hearing officer upheld the termination at the first informal hearing. As noted above,
plaintiff does not challenge the hearing officer’s ultimate decision upholding AHA’s
termination of her housing assistance benefits. The record establishes that plaintiff’s loss of
governmental benefits was caused by her own conduct—the violation of her obligations under
the HCV program—rather than a deprivation of procedural due process. Moreover, plaintiff
has not shown that, had the AHA used proper procedure to terminate her housing assistance
benefits, she would have remained eligible for the HCV program after the termination date of
October 31, 2015, specified in the AHA’s notice. Since plaintiff did not suffer a loss directly
attributable to any due process violation, the trial court erred in awarding plaintiff housing
assistance after the original October 31, 2015, termination date.

¶ 17 III. CONCLUSION
¶ 18 For the foregoing reasons we vacate the April 29, 2019, order of the circuit court of Kane
County awarding plaintiff $16,368.

¶ 19 Order vacated.

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