Motion PSJ 2-19-2007 (Redacted)

MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Northwest Justice Project

401 Second Avenue S, Suite 407 Seattle, Washington 98104

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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

Pacific Shipyards Corp., 127 Wn. App. 356, 374; 112 P.3d 522 (2005) (discretion is abused

when “exercised on untenable grounds, or for untenable reasons”); see also Brown v. City of

Seattle, 117 Wn. App. 781, 796; 72 P.3d 764 (2003) (government action that is “arbitrary,

irrational, or tainted by improper motive” is impermissible under state and federal due process

clauses).

A-3. SHA Manufactured a Program Violation as a Pretext for Bringing Termination

Proceedings Against Ms. XXXXXXX.

Not only did SHA bring this termination proceeding for an unlawful motive, but SHA

also used illegitimate tactics to facilitate the plan. SHA claims it has the authority to demand

Section 8 participants who are “noncompliant” must relocate as a condition for remaining in the



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program. Tr. at 70-72. This may or may not be true, but Ms. XXXXXXX had not shown herself

to be “noncompliant” prior to missing the 2006 conference. Tr. at 137 (Q. … “there was no

reason to terminate Ms. XXXXXXX [from the program], and you weren’t aware of her having

done anything that was a lease violation or against the law? A. Correct.”). The only complaint

SHA had received alleging misconduct by Ms. XXXXXXX was investigated and found not

credible. Tr. at 133, 137. Even if Ms. XXXXXXX became “noncompliant” upon missing the

2006 conference, SHA first contemplated bringing termination proceedings against Ms.

XXXXXXX as early as March 15, 2006 – six weeks before that conference. Ex. 68, 202; Tr. at

134-36.

In fact, SHA anticipated Ms. XXXXXXX would fail to attend the 2006 conference

before it was even scheduled. Ex. 222. At least part of the reason SHA expected Ms.

XXXXXXX would miss a future conference was SHA’s awareness of her health problems – yet

SHA perceived no obligation to avoid calling Ms. XXXXXXX in for conferences because she

had not submitted a written request (to be excused from conferences as a reasonable

accommodation for health problems). Tr. at 202, 211 (“While we may have been aware of the

health issues that were going on, at no point in time did she ever request any accommodation to

any meetings based on those health issues … Any request like that has to be in writing.”). Also,

SHA presumed that a missed meeting would establish grounds for termination, and that SHA,

although having no general authority to order Ms. XXXXXXX to move, felt they could require

her to move as a quid pro quo for keeping her housing assistance, were grounds for termination

to arise. Tr. at 70-73, 112-13.

It was under these circumstances that SHA scheduled and demanded Ms. XXXXXXX

appear at the 2006 conference. Ex. 62, 68, 201. SHA rescheduled the 2006 conference twice,



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including once when Ms. XXXXXXX actually appeared for the meeting. Ex. 62, 68-69. SHA

had extensive communication with Ms. XXXXXXX throughout April 2006, yet made no effort

to reschedule the conference before initiating the termination proceedings. See, e.g., Tr. 208-09.

Even after issuing the termination notice, Manjarrez confirmed that SHA still would not have

pursued the termination had Ms. XXXXXXX had moved. Tr. at 70.

Thus, not only is it clear SHA initiated the termination proceedings for the purpose of

coercing Ms. XXXXXXX into moving, but also that SHA created that leverage by scheduling

the 2006 conference as a “set-up,” anticipating that Ms. XXXXXXX would fail to attend (after

which SHA could use the missed conference as a pretext for bringing the termination

proceedings). SHA formed this plan at least by March 15, 2006, and executed it with calm

bureaucratic indifference. Defendant finds it astounding that SHA see nothing wrong with these

actions, which align squarely with the common law test for abuse of process. Fite at 27-28.

That SHA expected Ms. XXXXXXX to miss the 2006 conference at least in part due to

her health problems only amplifies the abusive and unlawful nature of the termination. Tr. at

202; see 24 CFR 982.53(a). Even if Ms. XXXXXXX’ disabilities did not directly preclude her

from attending meetings,2 SHA still perceived Ms. XXXXXXX’ disabilities would deter her

from attending, and exploited her condition as part of a scheme to institute termination

proceedings against her, proceedings themselves intended to accomplish an unlawful objective of

causing her to move. Tr. at 202; see Fite at 27-28. Not only does Ms. XXXXXXX’ lack of a

written reasonable accommodation request scarcely justify SHA’s conduct, but runs

2 Ms. XXXXXXX did not contend that her health conditions directly precluded her from attending conferences;

rather, Ms. XXXXXXX argued that her health conditions, combined with mind-altering medications and other stress

factors, led to a miscommunication during a telephone conversation with Manjarrez the day before the April 20,

2006, conference, for which reason Ms. XXXXXXX thought the conference had been postponed when it in fact had

not been. Tr. at 195-200. The hearing officer refused to consider this argument. Tr. at 198-99; Ex. 320-21.



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diametrically opposite to SHA’s affirmative duty to accommodate persons with disabilities. See

24 CFR 982.53(b)(2) (“The PHA will affirmatively further fair housing in the administration of

the program.”).

If for no other reasons than these, the Court should find the termination decision was

unlawful, contrary to Ms. XXXXXXX’ guarantee to substantive due process of law,

discriminatory, and an abuse of discretion -- and reverse the decision pursuant to RCW

7.16.120(3).

B. SHA Failed to Prove by Substantial Evidence that Ms. XXXXXXX Failed to

Supply SHA with Information Necessary in the Administration of the Section 8

Program.

Even if SHA’s termination decision had not been adulterated by improper motives, SHA

did not even prove that Ms. XXXXXXX violated any of her Section 8 family obligations. See

24 CFR 982.551. The hearing officer’s ruling to the contrary relied on flawed interpretations of

a HUD regulation and SHA’s Administrative Plan and on untenable factual findings. On review,

the hearing officer’s factual findings are sustained if supported by “substantial evidence.” RCW

7.16.120(5). “Substantial evidence” means sufficient evidence “to persuade a fair-minded,

rational person of the truth of the finding.” See Dillon v. Seattle Police Pension Board, 82 Wn.

App. 168, 171; 916 P.2d 956 (1996). The hearing officer’s application of law to those facts is

reviewed de novo. See Sellers at 330.

B-1. Termination of Section 8 Assistance for Breach of Family Obligations.

PHAs are obligated to abide by HUD regulations in operating Section 8 programs. See

24 CFR 982.52(a) (“PHA must comply with HUD regulations and other HUD requirements for

the program.”). HUD limits the reasons for which a PHA may terminate a family’s voucher to

those listed in 24 CFR 982.552 and 553. Thus, SHA could not lawfully terminate Ms.



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XXXXXXX’ voucher without proving grounds for termination under 24 CFR 982.552 or 553.

SHA relied on 24 CFR 982.552(c)(1), which authorizes termination for violation of “family

obligations under the [Section 8] program.” Ex. 74-75.

A participant’s “family obligations” are set forth in 24 CFR 982.551. The violation of a

“family obligation” potentially subjects a family to termination from the program, but only if

warranted in the PHA’s discretion. See 24 CFR 982.552(c)(1). The specific “family obligation”

SHA accused Ms. XXXXXXX of violating was:

“The family must supply any information that the PHA or HUD determines is

necessary in the administration of the program, including submission of required

evidence of citizenship or eligible immigration status... ‘Information’ includes any

requested certification, release or other documentation.”

24 CFR 982.551(b)(1); Ex. 74-75. Based on this text, the elements necessary to find a

violation of this obligation are: (i) there is information that HUD or the PHA determines is

necessary in the administration of the program; (ii) the PHA attempts to obtain the information

from the family; and (iii) the family fails to supply the information. See 24 CFR 982.551(b)(1).

In addition, HUD also requires a PHA to “administer the program in accordance with the

PHA administrative plan.” 24 CFR 982.54(c). SHA’s Administrative Plan provides that a

“family will be given two opportunities before being issued a notice of termination or denial for

breach of a family obligation.” Ex. 110. Thus, to raise a “prima facie case” for termination of

Ms. XXXXXXX’ voucher, SHA needed to establish that (i) there was information SHA (or

HUD) determined was necessary in the administration of the program, (ii) SHA tried to obtain

the information from Ms. XXXXXXX, (iii) Ms. XXXXXXX failed to supply the information,

and (iv) SHA gave Ms. XXXXXXX at least two opportunities to supply the information. See 24

CFR 982.551(b)(1); Ex. 110. The termination decision could not be sustained unless SHA

proved each element by competent and substantial evidence. See RCW 7.16.120(4-5).



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B-2. The Meetings Ms. XXXXXXX Supposedly Missed Did Not Constitute a

Violation of Her Family Obligations that Would Authorize Termination of Her

Voucher.

However, SHA did not derive the elements of its termination claim from the relevant

HUD regulation and provisions of its Administrative Plan; rather, SHA relied on the flawed

premise that SHA acquires discretion to terminate a family’s voucher upon two missed meetings.

Tr. at 60, 111-113. This premise is flawed because SHA cannot terminate a family from the

program except in accordance with 24 CFR 982.552 or 553, neither of which permit termination

for missed meetings alone. See also 24 CFR 982.551. Termination is authorized for a family’s

failure to provide information (necessary in the administration of the program), and meetings are

certainly one way for a PHA to obtain information from a family. See 24 CFR 982.551(b)(1),

552(c). However, a participant who misses a meeting does not automatically violate the duty to

provide information; rather, for a missed meeting to constitute a violation (of the duty to provide

information), three additional factors are necessary: the meeting must have been intended for the

PHA to obtain information, the information must have been necessary in the administration of

the program, and the family must have failed to provide the information by some other method.

See 24 CFR 982.551(b)(1).

Thus, under SHA’s Administrative Plan, which states that a “family will be given two

opportunities before being issued a notice of termination … for breach of a family obligation,”

two missed meetings will establish grounds for termination only if those meetings represented

successive attempts to elicit a piece of information (that was necessary in the administration of

the program). Ex. 110; see 24 CFR 982.551(b)(1). SHA and its hearing officer incorrectly

interpreted this provision such that a family becomes subject to termination upon missing two

conferences -- whether or not those conferences represented successive attempts to obtain a



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particular piece of information necessary in the administration of the program. Tr. at 60, 111-13;

118 (“When we choose the discretion to go to a hearing for missed conferences, it does not have

to specifically be for the same issue . . . any time you miss two mandatory meetings, we have the

discretion to take a participant to a hearing.”); Ex. 74-75, 110.

This misinterpretation of the Administrative Plan is critical to the termination decision in

this case. SHA alleged that Ms. XXXXXXX missed three conferences with SHA staff – but

those conferences did not represent successive attempts to obtain a piece of information

necessary in the administration of the program. Ex. 74-75. The 2004 conference was intended

to enable a four-way dialogue between SHA, Ms. XXXXXXX, Sterling, and Chew, about Ms.

XXXXXXX’ complaints. Ex. 5, 74-75. The 2005 meeting concerned information needed for

Ms. XXXXXXX’ annual review, a different subject altogether, and certainly not a successive

attempt to obtain information SHA previously sought at the 2004 conference. Ex. 29, 74-75; Tr.

at 80, 93, 119. The 2006 conference again concerned Ms. XXXXXXX’ complaints about

Sterling – and thus had nothing to do with the annual review information SHA sought at the

2005 conference. Ex. 62, 68, 74-75; Tr. at 80, 93, 119. Given the purposes of respective

meetings, Ms. XXXXXXX could not have violated her obligation to supply SHA with

information (necessary in the administration of the program), whether she missed the

conferences or not. See 24 CFR 982.551(b)(1). SHA’s Administrative Plan simply does not

authorize termination of a family’s housing assistance for missing multiple conferences alone –

and such a provision would be impermissible if such a provision did exist. See 24 CFR

982.54(b), 551; ex. 110.

Since SHA did contend that the 2004 and 2006 conferences concerned the same subject

matter, Plaintiff anticipates SHA may attempt to defend its termination decision on the basis that



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the 2006 conference was a successive attempt to elicit information SHA first sought from Ms.

XXXXXXX at the 2004 conference. Tr. at 119. That would be a dubious interpretation of the

evidence, since the 2006 conference was intended as a two-way conversation between SHA and

Ms. XXXXXXX, did not involve Chew or Sterling, was scheduled nineteen months after the

2004 conference, throughout which time SHA received extensive information from Ms.

XXXXXXX about those issues, and because SHA had ulterior motives for scheduling the 2006

meeting (as discussed above). Ex. 74-75; see Tr. at 80-82, 119-20. Simply put, whatever

information SHA was after in the 2006 conference could not possibly have been the same as the

2004 conference, even though the information may have concerned the same general topic (i.e.,

Ms. XXXXXXX’ complaints about Sterling).

Nonetheless, viewing the evidence in the light most favorable to SHA, Plaintiff will

presume the information SHA was seeking at the 2004 and 2006 conferences was identical. Tr.

at 115-20. SHA explained that the information it sought was: “to find out what’s causing the

conflict” between Ms XXXXXXX and Sterling. Tr. at 120. Yet SHA admitted that Ms.

XXXXXXX provided that information, explaining the source of her disputes with Sterling

through “many telephone calls or many e-mails.” Tr. at 120. Since Ms XXXXXXX provided

the information, she could not have violated her “family obligation,” which was to provide the

information. 24 CFR 982.551(b)(1); see also Tr. at 211 (Ms. XXXXXXX “has chosen to

[communicate] through e-mails and through telephone calls, and not meet with the Housing

Authority, as the Housing Authority has requested.”). Regardless whether she provided the

information at meetings or by telephone and e-mail, Ms. XXXXXXX provided the information

SHA was seeking; so the decision to terminate her voucher was erroneous as a matter of law, and

subject to reversal. See RCW 7.16.120(3); see.24 CFR 982.551(1)(b)(1).



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B-3. The 2004 and 2006 Conferences Did Not Concern Information Necessary in the

Administration of the Section 8 Program.

Another reason Ms. XXXXXXX could not have violated her obligation (to supply SHA

with information necessary in the administration of the program) in connection with the 2004

and 2006 conferences is because SHA had not determined that the information SHA was seeking

at those conferences was “necessary in the administration of the program.” 24 CFR

982.551(b)(1). On the contrary, SHA had determined the information was not necessary. Tr. at

140.

Again, SHA made clear at all times that the only information SHA was seeking from Ms.

XXXXXXX at the 2004 and 2006 conferences was information concerning her complaints about

Sterling. Tr. at 115-120; Ex. 5, 62, 68, 74-75. Yet ample evidence established SHA considered

Ms. XXXXXXX’ complaints about Sterling irrelevant to the Section 8 program, for instance:

(i) SHA’s termination notice stated “[because] complaints about the neighborhood and

especially your neighbor, Keyonna Sterling . . . are issues that should be worked out

between yourself, Ms. Sterling, and your landlord, Thomas Chew, SHA has not taken an

active role in these matters.” Ex. 74-75;

(ii) A memorandum by Mike Jung of SHA summarized a telephone conversation in

which he “attempted to explain to [Ms. XXXXXXX] that neither her landlord nor the

Housing Authority could intervene” in issues concerning Sterling. Ex. 23;

(iii) In e-mail message to Ms. XXXXXXX, Vicki Seeber of SHA stated: “Section 8 does

not interfere in the landlord-tenant relationship. It is up to [your] landlord to enforce the

rules. . . In this situation, you can do the following: 1) You can work with your landlord

to resolve the situation. 2) You can decide to live with and accept the situation as it is. 3)

You can decide to move.” Ex. 52-53; and

(iv) Another e-mail message to Ms. XXXXXXX, written by Linda Brosell of SHA,

stated: “Seattle Housing Authority has no ability to address landlord tenant issues of Section 8

participants when a dispute arises between tenants . . . the problem you have described is

not one Seattle Housing Authority can address.” See ex. 51.

SHA’s oral testimony at the informal hearing was generally consistent with these past

communications. Tr. at 26-30, 73-78, 140. Based on this evidence, the hearing officer appears



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to have correctly observed that SHA did not determine Ms. XXXXXXX’ complaints about

Sterling, i.e. “landlord-tenant issues,” to concern information necessary in the administration of

the program. See ex. 320. Because a PHA must first determine information to be “necessary in

the administration of the program” before it may demand a participant appear at a meeting and

provide the information on penalty of termination, this fact – that the only information SHA was

seeking at the 2004 and 2006 conferences was not necessary in the administration of the program

– should have precluded termination of Ms. XXXXXXX’ voucher. See 24 CFR 982.551(b)(1).

Nonetheless, the hearing officer ruled against Ms. XXXXXXX with respect to both the

2004 and 2006 conferences, on the supposition that Ms. XXXXXXX, by attending, “could have

supplied [SHA] with information necessary to preserve the health, safety, and peaceful

enjoyment of the residents in the immediate vicinity of the premises, including Ms.

XXXXXXX.” Ex. 320. Under the hearing officer’s rationale, then, Ms. XXXXXXX violated

her family obligation (to supply SHA with information necessary in the administration of the

program) not because she failed to supply SHA with the information SHA was actually seeking –

but because she failed to attend meetings at which she could have provided other information

that SHA was not seeking (and had not even identified). Ex. 320. This analysis surely

misinterprets 24 CFR 982.551(b)(1).

A regulation should not be interpreted so as to render the language superfluous. See, e.g.,

Prison Legal News, Inc. v. Dept. of Corrections, 154 Wn.2d 628, 644; 115 P.3d 316 (2005). Yet

a housing authority “could” obtain “information related to preserving the health, safety, and

peaceful enjoyment of the residents in the immediate vicinity of the premises” in virtually any

imaginable interaction with a Section 8 participant. If a housing authority need not first identify

specific information to obtain, and determine the information is necessary (in administration of



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the program), before demanding a Section 8 participant appear and produce the information on

penalty of termination, then the requirement that information be “necessary in the administration

of the program” would be utterly meaningless. See 24 CFR 982.551(b)(1).

Ms. XXXXXXX would prevail under a correct interpretation of 24 CFR 982.551(b)(1).

Having determined the information it sought at the 2004 and 2006 conferences was not necessary

for administration of the program, SHA had no authority to terminate Ms. XXXXXXX’ voucher

for missing either meeting. 24 CFR 982.551(b)(1), 552. To apply the regulation otherwise not

only misinterprets the regulation, but does so in a way that offends basic notions of due process;

the decision was contrary to law and should therefore be reversed pursuant to RCW 7.16.120(3).

B-4. Ms. XXXXXXX Had Good Cause for Missing the 2004 and 2005 Conferences.

Even if missed conferences alone could have warranted termination of Ms. XXXXXXX’

voucher, the hearing officer should have found that Ms. XXXXXXX had good cause for not

attending at least two of the conferences. Ex. 110 (missed appointments and deadlines may be

excused for good cause under SHA Admin. Plan). The hearing officer’s findings to the contrary

were not supported by substantial evidence. RCW 7.16.120(5).

Decisive evidence proved the 2005 conference was canceled. Mike Jung of SHA

scheduled the conference for May 24, 2005, to correct mistakes on Ms. XXXXXXX’ her annual

review paperwork. Ex. 29. One mistake was that Ms. XXXXXXX had simultaneously

submitted two form declarations, one reporting to SHA that she was receiving a welfare grant

(TANF), and another called a “Zero-Income Affidavit” which asserted that she had no income at

all. Ex. 31. The other mistake was a clerical error in a Social Security Number on another form.

Ex. 31. Jung needed to clarify whether Ms. XXXXXXX was receiving TANF or had “zero-

income,” and obtain the correct Social Security Number. Tr. at 20-21.



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However, as SHA confirmed, Ms. XXXXXXX called SHA by phone on May 23, 2005,

and requested not to attend the conference. Ex. 74. According to a computer log entry by

Manjarrez (dated May 23, 2005), in the call Ms. XXXXXXX reported:

“personal medical health issues that have caused her to be late in getting req’d pwk in to

[Jung] for [annual review]. Is willing to do what is needed, just needed to explain . . .

why she can’t leave her home to come to conference.” Ex. 30.

In a June 1, 2005, letter to Ms. XXXXXXX, Jung referenced the phone call and stated:

“On May 6, 2005, you were sent a letter stating that we would like to talk to you about

missing paperwork . . . You called to request not to have to come in. After talking with

Toni Manjarrez, Occupancy Supervisor, it was decided that SHA would make one last

attempt to communicate with you via mail.” Ex. 31-32.

Jung’s letter further indicated that Ms. XXXXXXX had clarified she was receiving

TANF, and that SHA had agreed to await the corrected Social Security Number form by mail.

Ex. 31. Ms. XXXXXXX provided the documents on June 7, 2005, and SHA acknowledged

receiving the corrected documents. Ex. 236-37; Tr. at 85-86. Ms. XXXXXXX testified that she

understood the 2005 conference was canceled by the telephone conversation, and her testimony

was not refuted. Tr. at 82-88, 172-77.

Still, the hearing officer ruled that the 2005 conference had not been canceled, and thus

that Ms. XXXXXXX violated her family obligations by failing to attend. Ex. 320-21. This

finding was not supported by substantial evidence. RCW 7.16.120(5). In the entire record, the

only evidence suggesting the conference had not been canceled was oral testimony by Manjarrez,

who said she didn’t think the conference was canceled because she had not written in her notes

that the conference was canceled. Tr. at 83. However, even Manjarrez went on to say that SHA

had agreed to receive the information (sought at the 2005 conference) by mail, that SHA

received the information by mail, that Jung had numerous undocumented phone calls with Ms.

XXXXXXX in which Jung may have agreed to cancel the conference, and most significantly,



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that SHA’s agreement to accept the information by mail “could” have defeated the purpose for

having a conference in the first place. Tr. at 82-88. Jung did not testify at the hearing. Ex. 301-

22.

At most, Manjarrez’ general denial may have been a “scintilla of evidence,” but was

surely not “enough to persuade a rational fair-minded person” that the conference was not

canceled. See Dillon at 171. Even so, Manjarrez’ testimony was the only evidence suggesting

the conference was not canceled – but the hearing officer did not even rely on Manjarrez’

testimony in his ruling. Ex. 321. Instead, the hearing officer relied on evidence that actually

proved the opposite:

[the] conference to take place on May 24, {sic} 2005, is regarding a zero income

claim submitted by Ms. XXXXXXX while she was receiving a TANF grant. In

addition to the income issue the notice stated that Ms. XXXXXXX had also failed

to complete annual review paperwork. The Social Security issue may have been

resolved, however, the income issue had not been resolved. It is my opinion that,

due to the unresolved issue of income, the conference scheduled to take place on

May 24, 2005, had not been canceled.

Ex. 321. There was absolutely no evidence indicating that the “income issue had not

been resolved.” Ex. 321. The only evidence bearing on the “income issue” was Jung’s June 1,

2005, letter to Ms. XXXXXXX, which showed that the “income issue” had been resolved:

Please understand that the Zero Income Affidavit is to be signed only by

household members (18 and over) that have absolutely no income – no

DSHS/TANF grant, no Social Security/SSI, no wages … nothing. This is why I

returned the form to you… You have documented your TANF grant on your

Personal Declaration, and I have noted on the Zero Income Affidavit that you do

have income that you are reporting so the form does not apply.

Ex. 31. The record is sufficient not only to vacate the hearing officer’s finding for lack of

substantial evidence, but to reverse finding outright because the only rational interpretation of the

evidence shows the 2005 conference was canceled. The information Ms. XXXXXXX provided

by phone on May 23, 2005, along with SHA’s agreement to await the corrected Social Security



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Number by mail, eliminated the purpose for the 2005 conference. For SHA to wait for Ms.

XXXXXXX to fill-out and return that form by mail, rather than correct the form at SHA’s

offices at the meeting the next day, would have been pointless had the conference not been

canceled. Moreover, that Ms. XXXXXXX actually provided the information should have

precluded any finding that she violated her family obligations under 24 CFR 982.551(b)(1). Ex.

236-37.

Ms. XXXXXXX also testified that upon receiving notice of 2004 conference, she called

Jung and asked to be excused for health reasons and also because she feared a confrontation with

Sterling. Tr. at 166. According to Ms. XXXXXXX, Jung replied that she had no obligation to

attend, but that SHA would not assist with her complaints unless she came to the conference. Tr.

at 166-67. Jung did not appear at the hearing, but Manjarrez explained Jung’s response this way:

He told [Ms. XXXXXXX] that if she didn’t want to attend she didn’t have to.

And she’s right. They make the decision whether they want to attend or not. The

letter clearly indicates that it is mandatory. She can choose to attend. If she

chooses not to, that’s her decision as well. And he was well within his right to

say that. You don’t have to attend if you don’t want to, but the letter clearly states

that it is mandatory.

Tr. at 205-06. Of course, the “letter” to which Manjarrez referred in that passage actually

did not indicate that the conference was mandatory. Ex. 17. Either way, as SHA not only failed

to refute Ms. XXXXXXX’ testimony but even admitted Jung made the statements attributed to

him, the hearing officer should have found Ms. XXXXXXX had good cause for not attending the

2004 meeting. Ex. 110. Regardless what the letter said, Jung’s statements, as explained by

Manjarrez, would surely have led any reasonable person to believe she was excused. Tr. at 166-

67, 205-06.

The hearing officer did not address this factual dispute in the ruling. Ex. 320-21. But

since the only evidence in the record showed Ms. XXXXXXX had good cause for not attending



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the 2004 conference, a contrary factual finding could not have been sustained by substantial

evidence, and the ruling should be reversed on this point. See RCW 7.16.120(5).

C. Termination of Ms. XXXXXXX’ Voucher for a Trivial Violation of Her Family

Obligations Would Be an Abuse of SHA’s Administrative Discretion.

The facts and law of this case show that Ms. XXXXXXX did not violate her family

obligations in the Section 8 program, and as such SHA never had any discretion to terminate her

from the program. See 24 CFR 982.552(c). But if there is some creative version of the factual

record and or unorthodox legal argument that might possibly establish such a violation, then any

such violation could at most be a mere technical, trivial infraction. In that event, SHA would

have discretion to consider terminating Ms. XXXXXXX’ voucher – yet SHA’s obligation to

exercise that discretion appropriately would still preclude termination under the circumstances of

this case. See 24 CFR 982.552(c)(2)(i) (in deciding whether to terminate Section 8 assistance, a

PHA “may consider all relevant circumstances including the seriousness of the case.”).

SHA is forbidden to exercise discretion in a ways that are “manifestly unreasonable, or

exercised on untenable grounds, or for untenable reasons.” See Hines v. Todd Pacific Shipyards

Corp., 127 Wn. App. 356, 374; 112 P.3d 522 (2005). In similar cases, courts have generally held

that termination of Section 8 assistance for mere technical violations of program rules constitute

abuse of discretion. See, e.g., In re Sweeney v. Chester County Housing Authority, 215 B.R. 97,

10-04 (Bankr.E.D.Pa. 1997) (termination requires “material noncompliance;” voucher “should

not be taken from any such tenant lightly, but only for reasons that are at once culpable and

significant”); see also Riggins v. Lannert, 796 N.Y.S.2d 93, 95 (2005); see also Nat’l Housing

Law Proj., HUD Housing Programs: Tenants’ Rights, 3d Ed., § 14.4.1.8 (“Technical violations

that result in little or no harm to the PHA should be insufficient” for termination of a Section 8

Voucher). Also, Ms. XXXXXXX’ right to substantive due process of law requires that the



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penalty not be grossly disproportionate to the offense for which it is imposed. See Kennedy v.

City of Ridgefield, 440 F.3d 1091, 1094 (9th

Cir. 2006) (penalty so disproportionate to the offense

for which it is imposed as to “shock the conscience” violates due process clause); see also

Riggins v. Lannert, 796 N.Y.S.2d at 95 (Section 8 participant breached payment agreement with

housing authority, but termination of Section 8 Voucher overturned due to unfairness of penalty).

In this case, SHA seeks to impose the harshest penalty available: termination of Ms.

XXXXXXX’ housing assistance, a penalty that would make her unable to afford her current

home and probably any other rental housing. As set forth above, SHA seeks to impose this

penalty as punishment for Ms. XXXXXXX’ refusal to move. Tr. at 70. Of course, since that is

not a lawful basis upon which to impose the termination, SHA must rely on its pretext, that of the

missed conferences. Tr. at 71; see Ex. 74-75. As shown above, the missed meetings did not

supply a legally sufficient basis to vest SHA with discretion to terminate Ms. XXXXXXX’

voucher, because none of the missed conferences established a violation of her “family

obligations” that would authorize termination consistent with SHA’s Administrative Plan. 24

CFR 982.551; Admin. Plan at 17-5. Still, even assuming for the sake of argument that Ms.

XXXXXXX did violate her family obligations in some way, it is certainly questionable whether

SHA’s allegations alone – that she missed three meetings, over nineteen months time, with only

one meeting (the 2005) concerning information related to the program -- set forth a “culpable

and significant” reason for termination of her voucher. Ex. 74-75. If not, then termination

would be an abuse of discretion.

The factual record further shows Ms. XXXXXXX was excused from the 2004 meeting,

the 2005 meeting was canceled, and that she provided the information SHA sought in connection

with both conferences, so SHA’s exercise of discretion should really be evaluated with respect to



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her only actual “offense,” that of missing the 2006 conference. Even aside from SHA’s dubious

motives in scheduling that conference, for SHA to terminate Ms. XXXXXXX’ voucher for

missing one conference would certainly be an abuse of discretion. This penalty is so profoundly

extreme, compared with any minor inconvenience Ms. XXXXXXX may have caused SHA by

missing that meeting, as to shock the conscience in no uncertain terms, and cannot be reconciled

with basic notions of due process. See Kennedy at 1094. As such, there can be no question that

the record, when viewed in the light most favorable to SHA, shows that Ms. XXXXXXX is

entitled to reversal of the termination decision and judgment as a matter of law. See CR 56; see

RCW 7.16.120(3).

VI. CONCLUSION

For the reasons stated above, Plaintiff Teresa XXXXXXX asks this Court to Reverse the

termination decision pursuant to RCW 7.16.120. Should the Court find insufficient grounds for

reversal, the decision should at lease be vacated, in which event Ms. XXXXXXX requests a trial

de novo in this Court, or in the alternative, a remand to SHA for a new informal hearing (with

appropriate instructions).

RESPECTFULLY SUBMITTED this ______day of January, 2007.

NORTHWEST JUSTICE PROJECT

By_____________________________

Eric Dunn, WSBA #36622

Attorney for Teresa XXXXXXX

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