10 12 B 15 16 7 18 19 20 21 22 24 Hon. Laura Middaugh January 15, 2010 11:00 a.m. RIC Rm. 4-A Oral Argument Requested IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING HOUSING AUTHORITY OF THE CITY OF | No, 99.2.41109-3 SEATTLE, WASHINGTON, a public body corporate and politic DEFENDANT'S MOTION FOR Plaintiff, SUMMARY JUDGMENT - CR 56(b) A ys. KHADIA BIN, AL, Defendants. I. Relief Requested Defendant Khadija Bin requests judgment as a matter of law because the Plaintiff, Seattle Housing Authority, lacks good cause to terminate her tenancy, did not comply with applicable language access requirements, and did not provide her an adequate administrative grievance hearing. This relief is authorized by CR 56(b). IL, Statement of Facts This is a residential unlawful detainer action concerning a federally-subsidized “public housing” tenancy. See 42 USC 1437c, The Plaintiff and landlord is Seattle Housing Authority DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 1 of 24 Northwest Justice Project 401 Second Avenue 5, Sulla” ‘Seattle, Washington 9908 Phone: (206) 64-1519 Foe (206) 624-750116 7 18 19 20 2 22 23 24 (hereafter “SHA”), a government body! that receives federal funds to develop and operate low- income housing facilities in Seattle, Washington. Defendant Khadija Bin and her family live in the disputed premises, an apartment at Yesler Terrace, one of more than thirty SHA-owned and managed public housing developments. The address is 117 Broadway, Apt. 631, Seattle Ms. Bin’s husband, Ali Abdullahi Aden, moved out of the home in July 2005 because of marital difficulties. Ex. 1,2. Ms, Bin promptly informed SHA of this change in her “household composition,” as well as Mr. Aden’s promise to pay child support of $500 per month, Ex. 1-3. Based on this change, SHA reduced Ms. Bin’s monthly rent payment, consistent with public housing rules.* Ex. 4. Eventually, Ms. Bin and Mr. Aden reconciled and he returned to the home. Ex. 1. The dispute in this ease centers on when his return occurred. Ms. Bin contacted SHA on February 28, 2007, to report that Mr. Aden had moved back into the residence, and asked SHA to restore him as a permanent household member. Ex. 1-3. SHA requested certain information and paperwork, which she submitted at that time, and which appeared to have resolved the matter. Ex. 1. However, more than two years later, a new SHA property manager reviewed Ms. Bin’s tenant file and came to the conclusion that she had misled SHA about the duration of Mr. Aden’s absence. Ex. 2, 4 Ms. Bin has consistently denied this allegation. B 1-2. But on July 8, 2009, SHA presented her a “Notice of Termination of Subsidy/Tenaney” (hereafter “the notice”) claiming Ms. Bin benefited from $5,867 in under-paid rent in 2005 and 2006 by supposedly deceiving SHA about her husband’s absence, Ex. 4. The notice demanded that Ms. Bin either pay SHA "In federal regulations, entities like SHA are called “public housing agencies” or “PHAs.” See 24 CFR 5.100. In Washington, “public housing agencies” are called “housing authorities.” RCW 35.82. The terms are equivalent. * See 24 CFR 960.253, 257 for information regarding public housing tenant rents and adjustments thereof. [DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 2 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 98108 Phone: (206) 464-1519" Foxe (206) 24-7501,10 itt 12 16 7 18 19 20 21 2 23 4 $5,867 within ten days or vacate her dwelling unit by July 31, 2009. Ex. 4. The notice further demanded that Ms. Bin vacate the premises by August 31, 2009, even if she paid the $5,867. Ex. 4. Attached to the notice was a “Summary of Grievance Procedure,” which stated that Ms, Bin could obtain a grievance hearing on written request to SHA. Ex. 4, The notice and Summary of Grievance Procedure were written entirely in English. Ex. 4 Ms. Bin speaks only Somali, so she was not able to read or understand the notice. Ex. 1. She asked a friend who knows both English and Somali to translate it for her, but from the friend’s summary learned only that SHA was demanding money. Ex. 1. Ms, Bin did not understand that SHA’s notice demanded she move out whether she paid the money or not, or that she had a right to a grievance hearing, or how to request a hearing, Ex. 1. Ms, Bin later leaned from others in the local Somali community that she might be able to obtain a hearing through SHA. Ex. 1 At that time Ms, Bin contacted Judy Carter, an SHA property manager at Yesler Terrace. Ex. 1, Carter prepared a grievance hearing request letter for Ms, Bin to sign and submit, Ex. 1 The letter, dated July 24, 2009, also stated that Ms. Bin was “pregnant and expecting [the] baby on August 3,” and that she would “need a Somali interpreter.” Ex. 1,3. After meeting with Carter, Ms. Bin sought and obtained legal representation for the grievance hearing, Ex. 1. Linda Todd of SHA initially scheduled Ms, Bin’s grievance hearing for August 10, 2009. Ex. 1. As Ms. Bin’s baby was not yet born, her lawyer wrote SHA on August 7, asking that the grievance hearing be postponed due to the ongoing pregnancy. Ex. 5. In the same letter, Ms. Bin asked to review SHA’s documents on August 18. Ex. 5. SHA rescheduled the hearing for » See 24 CFR 966.4(m) (“The PHA shall provide the tenant a reasonable opportunity to examine, atthe tenant's request, before a PHA grievance hearing or court trial concerning a termination of tenancy or eviction, any documents. directly relevant tothe termination of tenancy or eviction.”); see also 24 CFR 966.56(b} (same). DEFENDANT'S MOTION FOR SUMMARY JUDGMENT -3 of 4 Northwest Justice Project 401 Second Avenue 5, Suite 7 Seattle, Washington 56104 Phone: (205) 464-1519 Fo: (206) 624-7501nl 12 13 15 16 7 19 20 21 22 24 September 2, but did not produce its documents until August 26. Ex. 5-6. Because of the late production of documents, Ms. Bin’s counsel advised SHA that she did not have enough time left to prepare for a September 2 hearing, and asked SHA to reschedule the hearing a second time. Ex. 6. She proposed several dates in mid-September on which she would be available, as well as the dates she would not be available, Ex. 6. But Linda Todd, acting on instructions from SHA attorney Linda Brosell, rescheduled the hearing for September 8, one of the dates for which Ms. Bin’s attorney reported a conflict. Ex. 6, Ms, Bin promptly objected to the September 8 date, but SHA refused to change the hearing to a time her lawyer could attend. Ex. 6, Ms. Bin asked SHA to forward her objection to the hearing officer, but Brosell, on behalf of SHA, denied this request as well: “In regard to your request to have this matter referred to the hearing officer, SHA is denying your request. Hearings are scheduled by the Housing Authority, not the hearing officer, in accordance with SHA policy. The hearing officer does not determine when the hearings are scheduled.” Ex. 6 (attachment D). As her attomney was not available, Ms. Bin appeared at the grievance hearing on her own on September 8, 2009, and asked the hearing officer, Lawrence Weldon, for a continuance to a time her attorney could be present. Ex. 1-3, 6-7. Weldon called a recess, went to Linda Todd’s office, and discussed the matter with her. Ex. 7, He did not ask or permit Ms. Bin to accompany him to Todd’s office. Ex. 7. After the discussion with Todd, Weldon returned to the hearing room, denied the continuance request, and proceeded to hold the hearing. Ex. 2-3, 7. SHA presented its evidence and arguments first at the hearing,’ Ex. 2. On the claim that “The hearing was recorded, but the exhibits were not preserved and portions of the record are inaudible, Ex. 2-3. 7. SHA did not record Ms. Bin’s hearing with the digital voice recorder SHA normally uses for such hearings. Ex. 7. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 4 of 24 Northwest Justice Project 4401 Second Avenue, Suite 407 Seattle, Washington 95104 Phone: (206) 468-1519 Fax: (206) 624-75010 ih 12 1B 14 15 16 7 18 19 20 2 22 23 24 “Mr. Aden may have left the home temporarily, but that he returned shortly thereafter,” SHA’s representatives asserted that Ms. Bin had deceived SHA so that her rent would remain at a lower rate than was appropriate. Ex. 2. Ms. Bin and Mr, Aden denied SHA’s allegations and presented documents they believed corroborated Mr. Aden’s absence from the apartment between July 2005 and February 2007. Ex. 1-3, SHA did supply a Somali interpreter for the hearing, Ex. 3 Weldon issued a written decision in SHA’s favor on September 24, 2009. Ex. 3. Ms. Bin’s counsel wrote SHA October 8 asking that SHA disavow the ruling and hold a new grievance hearing due to deficiencies in both the written decision and the procedures leading up to the hearing. Ex. 6, SHA rejected her request on October 21, and brought this unlawful detainer action October 27, 2009. Ex. 6; see Cmplt. for Unlwil. Detnr. TIL, Statement of Issues Presented 1 Is this action precluded by SHA’s failure to provide Somali translations of Ms. Bin's vital documents? Answer: Yes, SHA must carry out a public housing lease termination in a non- discriminatory manner that is consistent with its language access plan. 2. Did SHA afford Ms. Bin an adequate grievance hearing? Answer: No, the grievance hearing lacked mandatory procedural safeguards and the decision was legally deficient. IV. Evidence Relied Upon This motion relies upon the following materials, filed under separate cover: Declaration of Khadija Bin, Nov. 20, 2009, and attachments thereto. ‘Transcript of SHA Grievance Hearing, Sept. 8, 2009 SHA Grievance Hearing Decision, Sept. 24, 2009 Lease Termination Notice, July 8, 2009 Declaration of Erie Dunn, Nov. 20, 2009, and attachments thereto, Declaration of Leticia Camacho, Dec. 7, 2009, and attachments thereto. Transcript from Deposition of Lawrence Weldon, Oct. 21, 2009 Declaration of JoAnn Guzman, Dec. 7, 2009, and attachments thereto, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 5 of 24 Northwest Justice Project 401 Second Avenue §, Suite 07 Seattle, Washington 98103 Phone: (206) 4641519 Fac (206) 24-7501,10 u 12 13 14 16 7 18 19 20 2 22 23 24 V. Argument & Authority A housing authority (or “PHA”), such as SHA, is a state actor subject to the Due Process Clause of the Fourteenth Amendment (to the U.S. Constitution), See King County Housing ‘Authority v. Saylors, 19 Wn. App. 871, 874; 578 P.2d 76 (Div. 1, 1978); see also RCW 35.82. As such, a PHA may not terminate a public housing tenancy without giving the tenant notice and an opportunity to be heard. See Saylors at 875 (“every public tenant, however disorderly, evil, or ‘malevolent, is entitled to due process before he is evicted.”), quoting Ruffin v, Housing Authority of New Orleans, 301 F.Supp. 251, 254 (E.D.La. 1969). The federal statutes and regulations that ‘establish and implement the public housing program further reflect these due process obligations. The U.S. Housing Act directs the Secretary of Housing & Urban Development (“HUD”) to promulgate regulations requiring each public housing agency to “establish and implement an administrative grievance procedure” that assures basic procedural safeguards to tenants, See 42 USC 1437d(k). Those HUD regulations, now codified at 24 CFR Part 966, further mandate that public housing lease termination notices, among other things, (i) be in writing, (ii) “state specific grounds for termination” of the tenancy, and (iii) “inform the tenant of the tenant's right to request a hearing in accordance with the PHA's grievance procedure.” 24 CFR 966.4(1(3)(i). In Washington, compliance with these federal requirements, as well as with all state and local laws and with the PHA's own policies, is a prerequisite to commencing an eviction lawsuit against a public housing tenant. See Saylors at 875 (a “housing authority must also comply with HUD regulations and its own grievance procedure. Until it does so, [public housing resident] is entitled to continue her tenancy.”); see Housing Authority of Everett v. Terry, 114 Wa.2d 558, 569; 789 P.2d 745 (1990) (PHA seeking to evict public housing tenant must comply with both DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 6 of 24 Northwest Justice Project 401 Second Avenue S, Sute 407 Seattle, Washington 98104 Phone: (206) 4641519 Fax (206) 624-750110 ul 12 14 15 16 7 18 19 20 22 23 24 state and federal notice provisions); see also Housing Authority of Seattle v. Silva, 94 Wn. App. 731, 734; 972 P.2d 952 (Div. 1, 1999) (PHA may not terminate public housing tenancy in a manner inconsistent with municipal ordinance). A. This action is precluded by SHA’s failure to translate vital documents into Somali, contrary to applicable language access requirements. ‘Asa public housing tenant, Ms, Bin was entitled by HUD regulations, her dwelling lease, and by state law to receive several written notices and documents concerning the termination of her tenaney. Some of these materials included a lease termination notice, a document informing her about SHA’s administrative grievance procedure, and a written grievance hearing decision. See 24 CFR 966.4(1)(3) (requiring written eviction notice that informs tenant of the grounds for termination of tenancy and of grievance hearing rights); see 24 CFR 966.57(a) (requiring written grievance decision); see also Terry, 114 Wn.2d at 569. SHA superficially complied with these requirements by providing Ms. Bin a written eviction notice and summary of grievance rights on July 8, and a written grievance decision on September 24, 2009. Ex. 3, 4. But SHA provided all these documents in English only, despite knowing that Ms. Bin’s primary language is Somali, and that she does not read or speak English. Ex. 1-4. SHA’s failure to translate these documents ran afoul of numerous applicable language access requirements, including its own Interpretation and Translation Policy (hereafter “ITP”), which provides that: “[v]ital documents shall be translated into selected languages [and] non-vital documents may be translated.” ITP at 2. ‘The ITP describes vital documents as “written materials ... that, if not understood, will result in the loss of housing.” ITP at 2. Probably no document fits this definition better than an eviction notice, which informs a tenant that her tenancy is being terminated, of the basis for the termination, and of the right to a grievance hearing. See 24 CFR 966.4(1)(3)(ii); Ex. 4. HUD DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 7 of 24 ‘Seattle, Washington 98104 Phone: (206) 464-1519 Fax (206) 625-750110 u 12 13 4 15 16 17 18 19 20 a 2 23 24 similarly identifies “written notices of rights, denial, loss, or decreases in benefits or services, and other hearings” and “notices of eviction” as examples of vital documents that should be translated except when unfeasible. HUD, Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (hereafter “LEP Guidance”),’ 72 Fed. Reg. 2732, 2740 (Jan. 22, 2007). ‘The Summary of Grievance Procedures, critical for the preparation and presentation of one’s defense at a grievance hearing, was also a vital document. See 24 CFR 966.52(d). As part of a “legal proceeding,” SHA owed a separate duty under state law to translate the grievance decision. See RCW 2.43.030(1)(c) (“[W]hen a non-English-speaking person is involved in a legal proceeding, the appointing authority shall appoint a qualified interpreter.”); see RCW 2.43.020(3) (defining “legal proceeding” to include a hearing “before an administrative board, commission, agency, or licensing body of the state or any political subdivision thereof. More specifically, the responsibility for securing translation of the grievance decision appears to have fallen on the hearing officer (or, perhaps, another “presiding official” at SHA). See RCW 2.43.020(5) (“Appointing authority’ means the presiding officer or similar official of any court, department, board, commission, agency, licensing authority, or legislative body”). ‘The hearing officer made clear that he did not fulfill this duty: Q. Did you arrange to have this ~ did you arrange to have your deci Khadija Bin's caso translated into Somali? * HUD published the LEP Guidance pursuant to Executive Order 13166, which ordered every “ageney providing Federal financial assistance [to] draft ttle VI guidance specifically tailored ... to ensure that the programs and activities they normally provide in English are accessible to LEP [limited-English-proficient] persons and thus do not discriminate on the basis of national origin in violation of title VI of the Civil Rights Act of 1964L]” 65 Fed. Reg. 50121 (Aug. 11, 2000). The LEP Guidance advised PHAs (and other HUD-funded entities) to adopt “language access plans” for assessing and meeting the language access needs in their communities, 72 Fed, Reg. at 2740, The ITP is SHA’s language access plan. See ITP at | DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 8 of 24 Northwest Justice Project 401 Second Avenue S, Sute 407 Seattle, Washington $8104 ‘Phone: (206) 464-1519 Fax (206) 624-7501,10 u 12 B 4 15 16 18 19 20 2 22 23 24 A. That question is so ridiculous, I can't even begin to tell you how stupid that question is. No, I did not arrange it. It's not the hearing officer's job to arrange to have interpreters, whatever, translated into somebody's language. Ex. 7 (Dep. of L. Weldon), Ln, 1-8, No one else at SHA arranged for translation of Ms, Bin’s grievance decision either, despite full awareness of her need for translation, Ex. 1-3. The ITP does not list any specific languages for which SHA will provide translation. See ITP at 2. However, the ITP indicates that it “was developed after considering the factors for determining appropriate assistance specified in the [LEP] Guidance: a) the number or proportion of LEP Persons served or encountered in the eligible service population; b) the frequeney with which LEP individuals come into contact with the program; c) the nature and importance of the program, activity, or service provided by the program; d) the resources available to the recipient and costs.” ITP at 1; see also 72 Fed. Reg. at 2740, All four elements of this test point to Somali as a language into which SHA must translate key documents, SHA, the largest PHA in the northwest with assets of over $370 million’ and a CY 2010 budget of $140.9 million,’ has the resources to translate vital documents. Public housing is one of the most important programs HUD funds, and lease termination is probably the most critical situation calling for interpretation and translation on behalf of LEP tenants, See 72 Fed. Reg. at 2741 (“The obligations to communicate rights to a person who is being evicted differ, for example, from those to provide recreational programming,”); see generally Saylors at 873 Also, Somali is one of the most significant foreign languages spoken in King County, which reportedly has the third-largest Somali population in the U.S., estimated at over 30,000 * hupiltwww.seattlehousing.orginews/pdfiCAFR_2008.pdf, last visited Dec. 2, 2009. ” hiup://www.seattlehousing.org/news/pdf/Budget_2010_proposed,paf, last visited Dee. 2, 2009 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 9 of 24 Northwest Justice Project 401 Second Avenue §, Suite 07 Seattle, Washington 98104 Phone: (206) 464-1519 Fax (206) 624-7501iW 12 13, 14 15 16 7 18 19 20 2 22 23 24 individuals. That Somalis access public services and require interpretation to do so is reflected by the 2007 Interpreter Survey by the Washington State Administrative Office of the Courts (AOC), which found that Somali was, statewide, the fifth most common language in need of interpretation in Washington courts. Ex. 8 Within King County, the need for Somali language services is concentrated in and around Seattle; Somali was the third most common language requiring interpretation in Seattle Municipal Court and the second most common in SeaTae and Tukwila Municipal Courts. Ex. 8. HUD recommends PHAS translate (non-unique) vital documents “for each eligible LEP language group that constitutes 5 percent or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered.” 72 Fed. Reg, at 2745. Seattle’s Somali-speaking population far exceeds this threshold. Ex. 8. ‘To its credit, SHA translates many documents into Somali already. Ex. 5. These range from the vital public housing application form to a (non-vital) monthly resident newspaper, Ex. 5. Under the 4-step test set forth in the LEP Guidance, surely SHA must prioritize translation of documents like the Summary of Grievance Procedures—a half-page form that may be translated once for the benefit of an entire language group—ahead of lengthy newspapers (which is apparently translated into Somali and several other foreign languages on a monthly basis). See ITP at 2; see 72 Fed. Reg. at 2748, Furthermore, a tenant’s actual language is immaterial with respect to eviction notices and * See Davila, Florangela, “Ruling Could Lead to Deportations,” Seattle Times (Jar. 13, 2005), hitp./community.seattletimes.nwsource,com/archive/?date=20050] 13&slug=somalil3m, last visited Nov. 11, 2009; McDade, Georgia, “More than 250 Attend New Holly Workshop to Learn About Somali Culture,” Rainier Valley ost (June 14, 2009), http://www rainiervalleypost.com/?p=10847, last visited Nov. 11, 2009. ° This need is growing. The 2007 Interpreter Survey noted that more than 1,700 Somali-speaking children were enrolled in English Language Learning (“ELL”) classes in publie schools during the 2005-06 academic year, @ 27% increase over the prior year, and Somali ELL enrollment increased by 56% over the four-year period from 2001-02 t0 2005-06. Ex. 8. According to AOC, “ELL counts provide a good picture of the languages spoken, the relative populations of speaker, the places they are concentrated, and trends.” Ex. 8. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 10 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 ‘Seattle, Washington 95108 Phone: (206) 464-1519 Fax (206) 624-750110 u 12 3 14 15 16 18 19 20 21 22 23 24 hearing decisions, unique documents that must be separately translated in each case, regardless which language, See 72 Fed. Reg. at 2748 (“In important programs or activities ... that require ‘one-on-one contact with clients, oral and written translations would be provided consistent with the four-factor analysis[.J”). According to the LEP Guidance, “[tJhere are some programs for which translation and interpretation are such an integral part of the funded program that services ‘would be provided in some way to any client that requires them.” 72 Fed. Reg. at 2748, A public housing grievance hearing, especially one concerning eviction, is probably the foremost activity involving “one-on-one contact with clients” that any HUD-funded entity conducts. See Goldberg at 264, see Saylors at 873. Interpretation of a grievance hearing is indispensable, and the written decision is part and parcel of the grievance hearing. See 24 CFR 966.57. Thus, SHA’s failure to provide Ms. Bin a Somali-language copy of her lease termination notice, grievance procedures, or grievance hearing decision was a violation of the ITP, which is fatal to this unlawful detainer action. See ITP at 2; see Saylors at 875 (PHA may not eviet public housing tenant in a manner inconsistent with its own policies). On a deeper level, PHAs that do not make necessary language access accommodations tend to effectively deny equal access to ethnic minorities (i., cause a disparate impact on the basis of national origin). See 65 Fed. Reg. at 50121. This is expressly prohibited by HUD regulations, among other laws. See 24 CFR 1.4(6)(2)() (PHA “may not, directly or through contractual or other arrangements, utilize ... methods of administration which have the effect of subjecting persons to discrimination [or that] have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity as respect to persons of a particular ... national origin.”). Similarly, the LEP Guidance interprets the obligations of PHAs under Title VI (42 USC DEFENDANT'S MOTION FOR SUMMARY JUDOMENT - 11 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 98108, Phone: (206) 468-1519 Fax: (206) 624750110 u 12 3 14 16 7 18 19 20 21 22 23 24 200d), which prohibits federal contractors from administering their programs in ways that have a disparate impact on the basis of national origin. See 72 Fed. Reg. at 2739. The LEP Guidance does not itself have the force of law, but SHA must comply with Title VI.'° See 42 USC 2000d- 4; see 24 CPR 5.105(a) (requiring HUD-funded programs to comply with, among other things, Title VI and the Fair Housing Act, 42 USC 3601 et seq.); see also 24 CFR 966.4()\(5)\(vii)(F) (“PHA’s eviction actions must be consistent with fair housing and equal opportunity provisions of [24 CFR] 5.105"). Disparate impact claims are also cognizable under the state Law Against Discrimination, which forbids both public and private housing providers from evicting tenants in a discriminatory manner. See Josephinum Associates v. Kahli, 111 Wn, App. 617, 626; 45 P.3d 627 (Div. 1, 2002) (“Discrimination may be a defense that arises out of the tenancy. When it does, the statute [RCW 49.60.22] permits a tenant to assert the defense and requires the court to consider it”). National origin is a protected class under the statute, See RCW 49,60,030(1). In this case, SHA’s failure to translate Ms. Bin’s vital documents into Somali denied her an equal opportunity to defend her tenancy through the grievance procedure. She has suffered a disparate impact on the basis of national origin, because her inability to read or speak English is, obviously, intrinsically linked to her Somali origin. Even if full translations of each document may not have been required under a disparate impact analysis, SHA should have provided at '° itis possible, but unclear, that SHA may also owe a constitutional duty to translate eviction notices and other ‘materials critical to a tenant's right to be heard, The Division One Court of Appeals has held that “due process allows notice of a hearing (and its attendant procedures and consequences) to be given solely in English to a non- English speaker if the notice would put a reasonable recipient on notice that further inquiry is required.” Kustura v Dept. of Labor & Indusiries, 142 Wn. App. 655, 676; 175 P.3d 1117 (Div. 1, 2008), review granted, 165 Wn.2d 1001; 175 P.3d 1117 (2008), SHA’s eviction notice likely meets this standard, but Kustura is on review to the Supreme Court, and anyway this line of authority may not extend to deprivations of basic subsistence benefits like public housing. See Goldberg v. Kelly, 397 U.S. 254, 264; 90 S.Ct. 1011 (1970) (due process requires greater procedural safeguards wheen a person’s “means to obtain essential food, ciothing, housing, [or] medical care” is at stake). In any event, the Court need not reach the constitutional sufficiency of the notice SHA gave Ms, Bin because the ease can be decided on non-constitutional grounds. See Washington State Farm Bureau Federation v. Gregoire, 162 Wn.2d 284, 292; 174 P.3d 1142 (2007) (case should be decided on non-constitutional grounds if possible). DEFENDANT'S MOTION FoR SUMMARY JUDGMENT - 12 0f 24 Northwest Justice Project 401 Second Avenue 5, Suite 407| Seattle, Washington 99104 Phone: (206) 464-1519 Fax (206) 624-750110 u 12 13, 4 15 16 17 18 19 20 21 2 23 24 least some translation—perhaps a Somali-language summary of each document's most important contents and information on how to access further translation. See 72 Fed. Reg. at 2744 (“vital information may include, for instance, the provision of information in appropriate languages other than English regarding where a LEP person might obtain an interpretation or translation of the document.”). ‘There being no question that SHA translated none of the relevant documents, nor any parts thereof, Ms. Bin is entitled to judgment as a matter of law. See CR 56(0), B, SHA did not provide Ms. Bin a fair or meaningful grievance hearing. Federally-subsidized housing provides a basic subsistence benefit for those indigent families able to obtain it. For this reason, and because of the impracticality of post-eviction remedies, a housing authority may not terminate a public housing tenancy without providing, at minimum, a pre-deprivation administrative hearing that includes: “(1) timely and adequate notice detailing the reasons for a proposed termination, (2) an opportunity on the part of the tenant to confront and cross-examine adverse witnesses, (3) the right of a tenant to be represented by counsel, provided by him to delineate the issues, present the factual contentions in an orderly manner, conduet cross-examination and ‘generally to safeguard his interests, (4) a decision, based on evidence adduced at the hearing, in which the reasons for decision and the evidence relied on are set forth, and (5) an impartial decision maker.” Saylors at 873-74, quoting Caulder v. Durham Housing Authority, 433 F.2d 998, 1004 (4" Cir, 1970), discussing Goldberg at 267-71. As the Court of Appeals also observed, “[tJhese requirements are specifically incorporated in HUD regulations applicable to federally subsidized public housing agencies.” Saylors at 874; see 24 CFR 966.50-57, SHA’s failure to comply with these constitutional and regulatory mandates precludes this eviction, ad is thus a separate basis ‘upon which Ms. Bin is entitled to judgment as a matter of law. See Saylors at 875; see CR 56(c). 1, SHA effectively deprived Ms. Bin of her right to counsel at the hearing, A public housing tenant is absolutely entitled to be represented by her advocate in a PHA DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 13 of 24 Northwest Justice Project 01 Second Avenue, Suite a7 ‘Seattle, Washington 98108 Phone: (206) 464-1519 Fa (206) 625-750110 12 1B 14 15 17 18 19 20 21 22 23 24 grievance hearing (though the tenant is generally responsible for obtaining representation on her own). See Goldberg at 270 (“recipient must be allowed to retain an attorney if he so desires”); see 24 CFR 966,56(b) (“The complainant shall be afforded a fair hearing, which shall include: (2) The right to be represented by counsel or other person chosen as the tenant's representative, and to have such person make statements on the tenant's behalf”); see also Saylors at 873-74, As Goldberg recognized, the other procedural rights that a grievance hearing entails, such as making arguments and cross-examining witnesses, “would be ... of little avail if it did not comprehend the right to be heard by counsel.” Goldberg at 270. In this case, SHA effectively denied Ms. Bin her right to have legal representation at the grievance hearing by scheduling the proceeding for atime when SHA knew her attorney could not attend, Ex. 1, 6. Significantly, the SHA employee who scheduled Ms. Bin’s grievance hearing was not the hearing officer, but Linda Todd, the “Hearings Coordinator.” HUD defines “hearing officer” as the “person selected . .. to hear grievances and render a decision with respect thereto.” 24 CFR 966.53(d). ‘The person who heard and decided Ms. Bin’s grievance was Lawrence Weldon, not, Linda Todd. Ex. 1-3, 7. Yet HUD’s regulation provides that “a hearing shall be scheduled by the hearing officer or hearing pane!'' promptly for a time and place reasonably convenient to both the complainant and the PHA.” 24 CFR 966.55(f) (underline added). Perhaps someone other than the hearing officer may assist in scheduling grievance hearings, but at the very least HUD’s regulation must be construed to authorize hearing officers to postpone or reschedule hearings as necessary to meet the “reasonably convenient” standard. See 24 CFR 966.55({). "' HUD permits PHAs to have “hearing panels” adjudicate grievances rather than a single “hearing officer.” See 24 CFR 966.53(e) (“Heating panel shall mean @ panel selected... to hear grievances and render a decision with respect thereto.”), SHA does not use hearing panels. See Ex. 7. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 14 of 24 Northwest Justice Project 401 Second Avenue S, Sulte 407 ‘Seattle, Washington 95104 Phone: (206) 464-1519 Fax: (206) 624-750113 14 15 16 7 18 19 20 2 22 23 24 ‘The September 8 hearing date was not “reasonably convenient” to Ms. Bin because her lawyer was not available that day. See 24 CFR 966.55(). But when Ms, Bin asked for a continuance so that her attorney could be present, the hearing officer not only denied the request, he stated that he lacked the authority to grant it. Ex. 1-3, 7. This rationale was contrary to law and an abuse of discretion because the HUD regulation expressly provides a hearing officer with the authority to schedule grievance hearings. See 24 CFR 966.55(1); see Lake Union Drydock Co. v. Dept. of Natural Resources, 143 Wn. App. 644, 652; 179 P.3d 844 (Div. 2, 2008) (“An agency's decision is contrary to law where the agency violates rules governing its exercise of discretion.”); see Hines v. Todd Pacific Shipyards Corp., 127 Wn. App. 356, 374; 112 P.3d 522 (Div. 1, 2005) (discretion abused if “exercised on untenable grounds, or for untenable reasons”), ‘The reason SHA has offered for insisting Ms. Bin’s hearing take place September 8 is that one of its witnesses would be unavailable after September 9. Ex. 3, 6, This might have been a legitimate basis to deny the continuance (though Ms. Bin disputed that contention), but it was not the basis the hearing officer relied on, Ex. 3,7. The hearing officer did not hear SHA’s objections to the continuance and make a decision based on the specific facts and circumstances of the case, but instead denied the continuance based on an errant belief that he lacked authority to grant it, Ex. 2-3, 7. The hearing officer’s failure to actually consider and decide the question based on the specific facts and circumstances was an abuse of discretion, regardless whether he might have reached the same decision otherwise. See Brunson v. Pierce County, 149 Wn. App. 855, 861 205 P.3d 963 (Div. 2, 2009) (tribunal must actually exercise the discretion it has, in accordance with specific facts and circumstances). ‘The decision not to grant a continuance was also influenced by information Linda Todd DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 15 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 38104, ‘Phone: (206) 4641519 Fax: (208) 624-750110 ul 12 13 14 15 16 7 18 19 20 2 2 23 24 presented to the hearing officer in an ex parte conference outside the hearing and outside Ms. Bin’s presence. Ex. 1, 7. This was improper because a grievance decision “must rest solely on the legal rules and evidence adduced at the hearing.” Goldberg at 271; see also CFR 966.56(b). (The complainant shall be afforded a fair hearing, which shall include: ... (5) A decision based solely and exclusively upon the facts presented at the hearing.”); see also Saylors at 873-74, By leaving the hearing to interview Todd separately, the hearing officer also deprived Ms, Bin of her rights “to controvert evidence relied on by the PHA ... and to confront and cross-examine all witnesses upon whose testimony or information the PHA ... relies.” 24 CFR 966.56(6)(4). SHA has separately indicated that, as a matter of policy, its hearing officers may not reschedule grievance hearings. Ex. 2-3, 6. But SHA cannot promulgate grievance hearing rules that conflict with HUD regulations. See 42 USC 1437d(k) (PHA grievance procedures must ‘comply with HUD-prescribed regulations); see Saylors at 875; see also 24 CFR 966.57(b)(2) (grievance hearing decision must comply with “applicable Federal, State [and] local law, HUD regulations [and] the annual contributions contract between HUD and the PHA.”), If SHA forbids its hearing officers from rescheduling hearings (at least when necessary to meet the “reasonably convenient” requirement), then SHA’s policy is illegal and the tribunal was not competent to rule on Ms. Bin’s continuance request.'? See 24 CFR 966.4(f); see also State ex rel. Adams v, Superior Court, 36 Wn.2d 868, 872; 220 P.2d 1081 (1950) (tribunal lacks ‘competence where it is without jurisdiction to grant relief to which a party is entitled by law). 2, The grievance hearing decision is not supported by substantial evidence. “competent tribunal” is another due process requirement. See Rody v. Hollis, 81 Wn.2d 88, 92-93; 500 P.2d 97 (1972) (“The constitutional elements of procedural due process, and thus of a fair hearing, include] an opportunity to be heard or defend before a competent tribunal in an orderly proceeding adapted to the nature of the case). DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 16 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 98104 Phone: (206) 468-1519 Fa: (206) 24-750110 ul 12 14 15 16 7 18 19 20 21 22 24 For all its flaws, Ms. Bin should actually have prevailed at the grievance hearing because SHA did not prove grounds for evietion, Ex. 1-2. a. The IRS Transcripts were not substantial evidence. ‘The hearing officer ruled that Ms. Bin “provid[ed] false and misleading information regarding her household composition leading to a subsidy to which she was not entitled.” Ex. 3. To reach this conclusion, the hearing officer must have found that Mr. Aden resided in the subsidized residence for at least part of the time Ms. Bin had reported him absent (i., between July 2005 and February 2007), even though no such a finding explicitly appears in the decision. Ex. 3, However, substantial evidence does not show that Mr. Aden lived in the subsidized home during that time ftame, See Alpha Kappa Lambda Fraternity v, Washington State University, Wn. App. __, 216 P.3d 451, 460 (2009) (administrative factual findings upheld when supported by substantial evidence). Substantial evidence means enough evidence to persuade a reasonable person. Mansour v. King County, 131 Wn, App. 255, 263; 128 P.3d 1241 Div. 1, 2005). The hearing officer is required to “state the reasons for his determination and indicate the evidence he relied on” in the written decision. Goldberg at 271; see 24 CFR 966.57(a). The only evidence cited that supports a conclusion that Mr. Aden lived in the subsidized unit between July 2005 and February 2007 were “Internal Revenue Transcripts for 2005 and 2006 show[ing] Mr. Aden’s home address as the same as [Ms. Bin’s] address.” Ex. 1-3. Yet the 2006 IRS ‘transcript was not even relevant evidence, and the 2005 transcript was at most a “mere scintilla” of evidence. See Welch Foods, Inc. v. Benton County, 136 Wn. App. 314, 323; 148 P.3d 1092 (Div. 3, 2007) (substantial evidence requires more than a “mere scintilla of evidence”), ‘The 2006 IRS transcript was not relevant because it has no tendency to make any more or DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 17 of 24 Northwest Justice Project 401 Second Avenue 5, Suite 407 Seattle, Washington 95108 Phone: (206) 4641519 Fax (205) 624750118 19 20 21 22 23 24 less likely SHA’s claim that Mr. Aden lived in the household before February 28, 2007, See State v. Lord, 161 Wn. 2d 276, 294; 165 P.3d 1251 (2007) (relevance means the tendency to make a material fact more or less probable); see also, e.g., BR 401. Contrary to the hearing officer’s apparent belief that federal income taxes for 2006 came due December 31, 2006," the IRS transcript indicated that Mr. Aden’s 2006 tax return was filed April 15,2007. Ex. 1. In other words, the 2006 tax return was filed six weeks after the date Ms. Bin reported his return to the household (February 28, 2007). Ex. 1. That Mr. Aden listed the subsidized address on a tax return he filed April 15, 2007, does not make any more likely the assertion that he resided at the subsidized address before February 2007. See State v. Lord at 294, While the 2006 IRS transcript proves nothing of importance, Mr. Aden’s 2005 tax return ‘was potentially relevant because it was filed between January and April of 2006, when he was reportedly out of the home. However, the undisputed record also shows that Mr. Aden and Ms. Bin remained married in 2006, that the subsidized dwelling unit was the “family home” where their children resided, and that Mr. Aden stayed with relatives (i.e., he did not have his own separate residence) while he was gone, Ex. 2. For these reasons, it is not improbable in view of the full record that Mr. Aden would have listed Ms. Bin’s address on his tax return in 2006 even The hearing officer appears to have mistakenly presumed that the 2006 tax return needed to be filed by December 31, 2006, as indicated by the following passage from the hearing transcript: HEARING OFFICER: You testified that you left the house in 2005 ~ in July of 2008 and you returned in February of 2007, comect? MR. ADEN: (Through the interpreter) That's correct, HEARING OFFICER: Okay. Now, these tax returns transcripts say that you filed the period ending December 31", 2006, MR. ADEN; (Through the interpreter) I's actually ~ it's actually not the date Ifill out the (inaudible). HEARING OFFICER: I know, but you had to ill it our prior to that date. It was the period ending December 31", so you it was before December 31", 2006, that you filled out that tax return. MR. ADEN: (Through the interpreter) Yeah. Yeah HEARING OFFICER: So you must have filled it out sometime in 2006, ‘That's what I’m saying.” See Ex, 3 at 36-37 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 18 of 24 Northwest Justice Project 401 Second Avenue S Suite 407 Seattle, Washington 95104 Phone: (206) 468-1519 Fax (206) 624-750110 ul 12 1B 14 18 19 20 21 22 23 if he was not living there at the time. See Alpha Kappa Lambda at 460 (substantial evidence means “evidence that is substantial when viewed in light of the whole record.”). On this record, a reasonable person would not accept the 2005 IRS transcript as sufficient proof to conclude that ‘Mr. Aden lived in the subsidized dwelling unit in 2006. It may support SHA’s claim to some miniscule degree, but it is not substantial evidence. See Welch Foods at 323. b. Intimate partner’s use of a tenant’s address is not substantial evidence to prove partner’s actual residence at the address. At least one analogous case from another jurisdiction reached a similar conclusion as Ms. Bin advances here. See Carter v. Olmstead Housing & Redevelopment Authority, 574 N.W.2d 725,731 (Minn, App. 1998). In Carter, a public housing agency sought to revoke a federally- sul lized housing voucher on the grounds that the tenant had permitted a male friend with whom she had an acknowledged relationship, Reccarro, to reside in the home without the PHA’s authorization. See Carter at 728. The PHA “hearing officer upheld the sufficiency of the evidence based on (1) the absence of another permanent address for Reccarro, (2) the fact that mail was sent to Reccarro at Carter's address before and after the period when he was listed on the voucher, and (3) Reecarro's statement in his April 10 letter that he was ‘moving out’ of Carter's home.” Carter at 732. The Minnesota Court of Appeals reversed, ruling that: “the first basis has no legal significance and the second provides insufficient factual support. The third basis amounts to semantics, and ... even taking into account evidence tending to impeach Carter's and Reccarro's credibility on other issues, we conclude that the record does not provide substantial evidence from which a reasonable finder of fact could conclude that the HRA carried its burden of proving that Reccarro lived with Carter in violation of section 8 regulations.” Carter at 732. Like in Carter, Ms. Bin had an acknowledged relationship with Mr. Aden. Ex. 1-2, But the only other evidence—the 2005 IRS transcript—shows only that he used her address for tax DEFENDANT'S MOTION FoR SUMMARY JUDGMENT - 19 of 24 Northwest Justice Project 401 Second Avenue 5, Suite 407 ‘Seattle, Washington 98104 Phone: (206) 464-1519" Fax (206) 624-750110 u 2 13 14 15 7 18 19 20 21 2 23 24 purposes. Like the mail addressed to Reccarro, the 2005 IRS transcript “provides insutficient factual support” to conclude that Mr. Aden actually lived at the address. See Carter at 732. Common sense also suggests that a person’s use of a particular address for mail or similar purposes cannot alone be substantial evidence to prove residence at that address. Low-income families in subsidized housing often have relatives and friends who are homeless or marginally housed. Such friends or relatives may use a subsidized tenant’s address for mail, employment applications, or other purposes—with or without the tenant’s knowledge or consent, When evidence of such use surfaces, treating that evidence alone as “substantial” would, as the Carter court noted, arbitrarily shift the burden to the tenant (to prove that some other person did not also live in the home). See Carter at 733. Proving such a negative is difficult and often impossible, especially when the alleged “unauthorized resident” used the tenant’s mailing address because he id not have his own. Ironically, the more tenuous a tenant’s connection to an alleged illicit resident is, the more difficult it often winds up being to disprove the allegation (as the tenant has less access to evidence showing where the alleged unauthorized resident was actually staying), 3. The grievance decision was arbitrary and contrary to law because it is based on incorrect evidentiary standards and untenable analysis. ‘The grievance decision also rests on untenable grounds because the hearing officer reached conclusions contrary to the manifest weight of the evidence and did not apply the law correctly. See Hines, 127 Wn. App. at 374 (discretion abused when “exercised on untenable grounds, or for untenable reasons”); see Brown v. City of Seattle, 117 Wn. App. 781, 796; 72 P.3d 764 (Div. 1, 2003) (due process forbids “arbitrary or irrational” government action). Ms. in presented ample evidence to corroborate her testimony that Mr. Aden moved out of the home in July 2005 and returned in February 2007. Ex. 1-3. Apart from her testimony and DEFENDANT'S MOTION FOR SUMMARY JUDGMENT -20 of 24 Northwest Justice Project 01 Second Avenue S Suite 407 Seale, Washington 95104 Phone: (206) 68-1519 Fos (206) 624-750110 i 12 1B 14 16 17 18 20 21 22 23 24 that of Mr. Aden, this included: (i) a letter from Maryan Hashi stating that Mr. Aden lived in a room at her house (at 8838 ~ 39" Ave. S., Seattle) from August 2005 through February 28, 2007; (ii) a letter from Abdurahman Jama reporting that his organization, East African Community Services, provided marital counseling to the couple during the time Mr. Aden was out of the home between July 2005 and February 2007; (iii) Ms. Bin’s March 2006, application to the Department of Social & Health Services (DSHS) for an in-home child care license, which did not list Mr, Aden as a houschold member; (iv) Ms. Bin’s 2007 child care license application that sought to add Mr. Aden as a household member; (v) other DSHS reports showing that Ms. Bin’s public benefits were reduced between July 2005 to February 2007 due to Mr. Aden’s absence, and (vi) and records of child support payments by Mr. Aden between 2005 and 2007. Ex. 1. ‘When reviewing an administrative decision, the Court accepts the agency's findings as to credibility and weight of evidence. Alpha Kappa Lambda at 460. However, a reviewing Court need not uphold unreasonable inferences or arbitrary conclusions. Jd, at 460 (“We accept the fact finder's determinations of witness credibility and the weight to be given reasonable but competing inferences.”), No such deference is warranted in this case because the hearing officer provided only irrational reasons for rejecting Ms. Bin’s evidence.'* For instance, the hearing officer rejected Mr. Aden’s testimony “that he moved out of [Ms. Bin’s] household on July 13, 2005, and began paying child support” because DSHS records “indicated that his support payments did not begin until July 2006.” Ex. 3. This was illogical. SHA’s theory was that Mr. Aden moved back into the home sooner than reported, not that he left 4 See also 24 CFR 966.57(c) (grievance decision “in favor of the PHA or which denies the relief requested by the complainant in whole or in part shall not constitute a waiver of, nor affect in any manner whatever, any rights the complainant may have toa trial de novo or judicial review in any [subsequent] judicial proceedings”), [DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 21 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 98105 Phone: (206) 464-1519 Fax (206) 624-750110 MW 12 13 16 17 18 20 21 22 23 24 the home later than reported, Ex. 2. The child support records corroborated Ms. Bin's claim that he returned at the end of February 2007. Ex. 1. That the records did not also corroborate the date of Mr. Aden’s initial departure is irrelevant. It was undisputed that Ms. Bin first reported his absence from the home in July 2005, and SHA neither alleged nor proved that Mr, Aden moved out at any other time, Ex. 2. Yet he must have left the household at some point, or there is no explanation for the child support payments he did make. And any theory under which Mr. ‘Aden did not move out until July 2006 cannot be reconciled with Ms, Bin’s July 2005 report. Another example of the hearing officer’s faulty reasoning concems Ms. Bin's 2006 child care license application, which did not list Mr. Aden in the home. Ex. 1. The hearing officer dismissed this evidence because Ms. Bin had filled-out the application herself and “failed to present any verification of a DSHS inspection of her home in 2006 or a DSHS verification of who lived at the residence at that time.” Ex. 3, But DSHS cannot lawfully issue a child care license without determining that a home meets the requirements for licensure, including by conducting background checks on every adult in the home. See RCW 74.15.100; see WAC 388- 148-0050. Thus, the license itself was presumptive evidence that the necessary inspection was completed. It was undisputed that DSHS actually issued the license, Ex. 1-3 Significantly, the decision contains no findings, whether actual or approximate, as to the dates Mr. Aden supposedly left and returned to the household. Ex. 3, Also missing from the decision is any amount of supposed extra “subsidies” Ms, Bin supposedly received (which, of course, cannot be determined without knowing Mr. Aden’s approximate dates of occupancy) Ex, 3, Without these missing facts, the hearing officer could not have assessed the materiality or severity of the supposed violation—factors highly relevant to determining whether eviction was DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 22 of 24 Northwest Justice Project 401 Second Avenue §, Sulte 407 Seattle, Washington 98104 Phone: (206) 464-1519 Fax (206) 626-7501ul 12 14 15 W 18 19 20 21 22 23 24 justified under the circumstances. See 24 CFR 966.4(1) (termination of public housing tenancy generally requires “material non-compliance,” and hearing officer may disallow eviction based on mitigating circumstances even where an infraction has occurred). ‘The hearing officer also treated Ms. Bin’s failure to disprove SHA’s claims as evidence in and of itself that SHA’s claims were valid, This was manifest error. Ms. Bin did not bear the burden of disproving SHA’s allegations; on the contrary, “the PHA must sustain the burden of justifying the PHA action or failure to act.” See SHA Gr. Proc. at 9; see also 24 CFR 966.56(e). If Ms. Bin failed to disprove SHA’s allegations, that is of “no legal significance.” See Carter at 732. Yet, as the grievance decision indicates, her inability to prove the negative was probably the most significant basis upon which the hearing officer reached the adverse ruling. Ex. 3 Finally, Ms. Bin argued at the grievance hearing that she felt her cultural and language barriers contributed to SHA’s false impression that she had been dishonest with SHA. Ex. 2. ‘This argument was not considered in the written decision, Ex. 3. As explained by the hearing officer, arguments concerning national origin discrimination (and other fair housing arguments) are not allowed at SHA grievance hearings: Q. Have you ever received any kind of training about housing discrimination or discrimination in federally-funded programs? ‘A.No, [haven't. I would think that attorneys would deal in that area, not a hearing officer. That's not something for an informal hearing to get into Q. You've never had cases where people have made arguments about housing discrimination? A. Not that I can remember. Q. How about arguments based on the Fair Housing Act? A. Thats an argument for court, not a simple grievance proceeding. Ex 7 Dep. of L. Weldon) at p. 37, In, 1-9, p. 108, In. 5-7. How this argument might have DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 of 24 Northwest Justice Project 401 Second Avene 5, Suite 407 ‘Seattle, Washington 93104 Phone: (206) 464-1519" Fase (206) 24-7501ist 12 14 15 16 7 18 19 20 21 2 23 24 affected the final outcome of Ms. Bin’s case cannot be known, but the categorical exclusion of relevant fair housing arguments is arbitrary and conflicts directly with HUD regulations, among other law. See 24 CFR 966.4(1)(5)(vii)(F) (“PHA’s eviction actions must be consistent with fair housing and equal opportunity provisions of [24 CFR] 5.105,” incorporating Fair Housing Act). 4, SHA’s lack of evidence separately makes this unlawful detainer action futile. Eve if the grievance decision had not been defective, Ms. Bin would still be entitled to a de novo hearing on SHA’s claim that she lied about her household membership and income. See 24 CFR 966.57(¢) (adverse grievance decision “shall not constitute a waiver of, nor affect in any manner whatever, any rights the complainant may have to a trial de novo or judicial review in any judicial proceedings, which may thereafter be brought in the matter.”); see also Saylors at 875. SHA does not appear to have any more evidence that Mr. Aden lived in the subsidized apartment between July 2005 and February 2007 to present at trial than at the grievance hearing. As SHA’s evidence is insufficient to convince a reasonable fact-finder of the alleged fraud, this case is ultimately futile on the merits. See Ripley v. Lanzer, 125 Wn. App. 296; 215 P.3d 1020 (Div. 1, 2009) (summary judgment for defendant proper where plaintiff cannot “present evidence sufficient to raise a material question of fact regarding the essential elements of its claim”), VI. Conelusion For the above reasons, judgment for Defendant should be entered pursuant to CR 56(b). Respectfully Submited this_// ay of December, 2009 NORTHWEST JUSTICE PROJECT Eric Dunn, wsB: 622 Leticia Camacho, WSBA #31341 Attomeys for Defendant Khadija Bin DEFENDANT's MOTION FOR SUMMARY JUDGMENT - 24 of 24 Northwest Justice Project 401 Second Avenue S, Suite 407 Seattle, Washington 98104 Phone: (206) 4641519 Fax: (206) 24-7501