dissenting:
Because the language in rule 22 is unambiguous and the tenant’s constitutional claim is without merit, I would reverse the summary judgment for the tenant and enter summary judgment in favor of the landlord as a matter of law.
I initially note that the majority does not address the tenant’s constitutional claim. I submit, nevertheless, that it is without merit. With the exception of Tyson v. New York City Housing Authority (S.D.N.Y. 1974), 369 F. Supp. 513, all of the due process cases cited by the tenant involve procedural due process, an argument that the tenant sub judice did not and could not make.
In order to establish a denial of substantive due process based upon a State-created property interest, it is necessary to allege "either a violation of some other substantive constitutional right or that state law remedies are inadequate.” (Polenz v. Parrot (7th Cir. 1989), 883 F.2d 551, 558.) Because the tenant does not have a constitutional right to "decent, safe and sanitary housing” (Hurt v. Philadelphia Housing Authority (E.D. Pa. 1972), 806 F. Supp. 515, 529; Lindsey v. Normet (1972), 405 U.S. 56, 74, 31 L. Ed. 2d 36, 50-51, 92 S. Ct. 862, 874) and has not claimed a violation of some other constitutional right or that the available State law remedies are inadequate, she has failed to meet the threshold requirement as expressed in Polenz.
Additionally, the very argument advanced by the tenant sub judice was rejected in Chavez v. Housing Authority (5th Cir. 1992), 973 F.2d 1245, where the court stated:
"Chavez’s final argument is based on the due process clause. She argues that the EPHA’s termination of her lease amounts to punishment of an innocent party for the acts of another person over which she has no control. Once again, Chavez bases her argument on the assertion that she is losing her apartment because of her familial relationship with her son. This argument lacks merit. Chavez is not being punished for the actions of her son. She is being evicted for failing to ensure that her guests do not disturb or endanger others in her community.” Chavez, 973 F.2d at 1249.
The only case which in any way supports the tenant’s argument is easily distinguishable. The decisive utterance in Tyson is that the tenant’s complaint for injunctive relief and declaratory judgment stated a cause of action because the procedural regulation under which plaintiffs were determined to be "non-desirable tenants” was unconstitutionally vague and overbroad and violated HUD regulations. (Tyson, 369 F. Supp. at 520.) The Tyson court goes on, by way of dicta, to require a finding of "personal guilt” in order to satisfy due process and in support cites Scales v. United States (1961), 367 U.S. 203, 6 L. Ed. 2d 782, 81 S. Ct. 1469. Scales, however, was a criminal conviction under the Smith Act and thus involved criminal penalties. As a result, Tyson is both distinguishable and of questionable precedential value. See Spence v. Gormley, 387 Mass, at 268, 439 N.E.2d at 748.
Similarly, defendant’s suggestion that rule 22 violates the equal protection clause of the constitution must also be rejected. Nowhere does defendant assert that plaintiff has a policy of holding tenants responsible for the acts of relatives that is different from its policy applied to nonrelative guests. Her unarticulated equal protection argument therefore fails because she has not demonstrated that any irrational classification scheme exists. Chavez, 973 F.2d at 1248.
Absent any valid constitutional claim, the dispute is one of contract law. While the tenant argues that rule 22 1 is ambiguous and in conflict in paragraph 23(b)2 , both positions are without merit.
Rule 22 does not contain any good cause language nor is there any requirement for "personal guilt or knowledge.” It clearly and unambiguously states "[A]cts of guests in violation of the lease, or management’s rules and regulations may be deemed by management to be a breach by resident.” Given the near impossible evidentiary problems of a "personal guilt or knowledge” requirement, it is easy to understand why such language was omitted from the lease.
Nor does a fair reading of paragraph 23(b) change the result. Clearly, possession of narcotics or narcotic paraphernalia constitutes material noncompliance with the terms of the lease. While several specific examples of material noncompliance are presented, that paragraph states that "[m]aterial noncompliance includes, but is not limited to.” Reality would dictate why a landlord would not attempt to set forth a laundry list of all situations that would constitute material noncompliance.
While paragraph 23(b)(3) does allow for eviction based upon "other good cause,” such language is in addition to (1) material noncompliance and (2) tenant’s refusal to carry out obligations under the State landlord and tenant act. Further, the very use of the language "other good cause” (emphasis added) in paragraph (3) implies that paragraphs (1) and (2) constitute good cause. Because "material noncompliance” constitutes a basis for termination, separate and in addition to "other good cause” (emphasis added), the only case cited by the majority in support of its position, Spence v. Gormley (1982), 387 Mass. 258, 439 N.E.2d 741, is easily distinguishable. In Spence, the supreme court of Massachusetts upheld the evictions of two Boston Housing Authority tenants based upon the criminal conduct (arson) of their respective sons. Before disposing of the tenants’ constitutional claims in favor of the landlord, the Spence court addressed Massachusett’s statute, Mass. Gen. Laws Ann. ch. 121B, § 32 (West 1989), which provides that a housing authority cannot terminate a tenancy without cause. Regarding the statute, which has no counterpart in Illinois, the court stated:
"As will be seen, we are not persuaded that 'personal responsibility’ is a constitutional prerequisite to eviction for the acts of household members. Nevertheless, we prefer to read the statute in a way that will avoid constitutional doubts. [Citation.]
This is not to say that we endorse, in our construction of § 32, the tenants’ proposal that the BHA cannot terminate their tenancies without affirmative proof that they knew or had reason to know of their sons’ violent propensities, and were able to control their sons’ conduct. Cf. Caldwell v. Zaher, 344 Mass. 590, 592, 183 N.E.2d 706 (1962). The requirement we discern in § 32 is not so broad. When the wrongdoer is a household member, a fair inference exists that the tenant is aware of potential problems, and able to exercise some influence or otherwise prevent violent and destructive conduct on the premises. Problems of unfairness arise only because this may not hold true in every case. Accordingly, we understand the 'cause’ requirement of § 32 simply to mean that a tenant should not be evicted if special circumstances are present to negate the inference that she could have averted the lease violation. In other words, if the tenant can show that she could not have foreseen and prevented her son’s violence, there is no 'cause’ to evict her within § 32.” Spence, 387 Mass, at 264-65, 439 N.E.2d at 745-46.
While the majority opinion seems to imply that a good cause requirement exists in Illinois, it cites no authority for such a proposition. As previously stated, the good cause language in paragraph 23(b) is not a requirement before which eviction can take place, but rather a basis for eviction which is in addition to material noncompliance (1) and noncompliance with the landlord and tenant act (2).
In sum, absent a valid constitutional or statutory claim, the agreement between the parties is purely contractual. While the concepts of "personal guilt” or fault apply to the criminal and tort law, neither the tenant nor the majority opinion cites to ány authority for ingrafting such a requirement to the law of contract.
Finally, contrary to the majority position, a fair and complete reading of Spence entirely supports a grant of summary judgment in favor of the landlord.
"22. *** Residents shall be responsible and liable for the acts of their guests. Acts of guests in violation of the lease, or Management’s rules and regulations, may be deemed by Management to be a breach by Resident.”
"Any termination of this Agreement by the Owner must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement. The Owner may terminate this Agreement only for:
(1) The Tenant’s material noncompliance with the terms of this agreement;
(2) The Tenant’s material failure to carry out obligations under any State Landlord and Tenant Act;
or
(3) Other good cause, which includes but is not limited to the Tenant’s refusal to accept the Owner’s proposed change to this Agreement.”