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LINDSEY ET AL. v. NORMET ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
Argued November 15, 1971
Decided February 23, 1972
Appellants, month-to-month tenants of appellee Normet, refused to pay their monthly rent unless certain substandard conditions were remedied, and appellee threatened eviction. Appellants filed a class action seeking a declaratory judgment that the Oregon Forcible Entry and Wrongful Detainer (FED) Statute was unconstitutional on its face, and an injunction against its continued enforcement. Appellants attacked principally (1) the requirement of trial no later than six days after service of the complaint unless security for accruing rent is provided, (2) the limitation of triable issues to the tenant's default, defenses based on the landlord's breach of duty to maintain the premises being precluded, and (3) the requirement of posting bond on appeal, with two sureties, in twice the amount of rent expected to accrue pending appellate decision, this bond to be forfeited if the lower court decision is affirmed. The District Court granted the motion to dismiss the complaint, concluding that the statute did not violate the Due Process or the Equal Protection Clause. Held:
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., post, p. 79, and BRENNAN, J., post, p. 90, filed opinions dissenting in part. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
John H. Clough argued the cause for appellants. With him on the briefs was Myron Moskovitz.
Theodore B. Jensen argued the cause for appellee Normet. With him on the briefs was Donald J. DeFrancq.
Briefs of amici curiae urging reversal were filed by Delane C. Carpenter for the Pima County Bar Assn.; by Howard W. Dixon, Bruce S. Rogow, and Steven Rappaport for Legal Services of Greater Miami, Inc.; by Helen S. White and Gerald D. McGonigle for New Hampshire Legal Assistance; by W. J. Michael Cody III for Memphis and Shelby County Legal Services Assn., Inc.; by Elizabeth M. Brooks for June Brooks; by Paul L. McKaskle for Western Center on Law and Poverty; by Martin R. Glenn and John G. O'Mara for Legal Aid Society of Louisville; by Andrea M. Alcarese for Legal [405 U.S. 56, 58] Aid Bureau, Inc.; by Nancy E. LeBlanc for Community Action for Legal Services, Inc., et al.; and by Franklin Arthur Martens for Allen County Legal Aid Society et al.
MR. JUSTICE WHITE delivered the opinion of the Court.
This case presents the question of whether Oregon's judicial procedure for eviction of tenants after nonpayment of rent violates either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment.
The material facts were stipulated. Appellants were the month-to-month tenants of appellee Normet 1 and paid $100 a month for the use of a single-family residence in Portland, Oregon. On November 10, 1969, the City Bureau of Buildings declared the dwelling unfit for habitation due to substandard conditions on the premises. 2 Appellants requested appellee to make certain repairs which, with one minor exception, appellee refused to do. Appellants, who had paid the November rent, refused to [405 U.S. 56, 59] pay the December rent until the requested improvements had been made. Appellee's attorney wrote a letter on December 15 threatening to "get a Court Order out on this matter" unless the accrued rent was immediately paid.
On January 7, 1970, however, before statutory eviction procedures were begun in the Oregon courts, appellants filed suit in federal district court under 42 U.S.C. 1983 seeking a declaratory judgment that the Oregon Forcible Entry and Wrongful Detainer (hereinafter sometimes FED) Statute, Ore. Rev. Stat. (ORS) 105.105-105.160, 3 [405 U.S. 56, 60] was unconstitutional on its face, and an injunction against its continued enforcement. A three-judge court was convened under 28 U.S.C. 2281, a temporary restraining [405 U.S. 56, 61] order was issued against the enforcement of the FED Statute, and appellants were ordered to make their rent payments into an escrow account during the pendency of [405 U.S. 56, 62] the District Court proceeding. A lengthy stipulation of facts was agreed upon, a number of exhibits and depositions were submitted, and the District Court then granted appellee's motion to dismiss the complaint, 4 after concluding that the statute was not unconstitutional under either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. 5 Appellants [405 U.S. 56, 63] promptly appealed, and we noted probable jurisdiction. 6
The Oregon Forcible Entry and Wrongful Detainer Statute establishes a procedure intended to insure that any entry upon real property "shall be made in a peaceable manner and without force." 105.105. A landlord may bring an action for possession whenever the tenant has failed to pay rent within 10 days of its due date, when the tenant is holding contrary to some other covenant in a lease, and whenever the landlord has terminated the rental arrangement by proper notice and the tenant remains in possession after the expiration date specified in the notice. 105.115. Service of the complaint on the tenant must be not less than two nor more than four days before the trial date, 105.135; a tenant may obtain a two-day continuance, but grant of a longer continuance is conditioned on a tenant's posting security for the payment of any rent that may accrue, if the plaintiff ultimately prevails, during the period of the continuance. 105.140. The suit may be tried to either a judge or a jury, and the only issue is whether the allegations of the complaint are true, 105.145, 105.150. The only award that a plaintiff may recover is restitution of possession. 105.155. A defendant who loses such a suit may appeal only if he obtains two sureties who will provide security for the payment to the plaintiff, if the defendant ultimately loses on appeal, of twice the [405 U.S. 56, 64] rental value of the property from the time of commencement of the action to final judgment. 105.160. 7
Appellant's principal attacks 8 are leveled at three characteristics of the Oregon FED Statute: the requirement of a trial no later than six days after service of the complaint unless security for accruing rent is provided; the provisions of 105.145 which, either on their face or as construed, are said to limit the triable issues in an FED suit to the tenant's default and to preclude consideration of defenses based on the landlord's breach of a duty to maintain the premises; and the requirement of posting bond on appeal from an adverse decision in twice the amount of the rent expected to accrue pending appellate decision. These provisions are asserted to violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Except for the appeal bond requirement (see Part IV, infra), we reject these claims.
We are unable to conclude that either the early-trial provision or the limitation on litigable issues is invalid on its face under the Due Process Clause of the Fourteenth Amendment. In those recurring cases where the tenant fails to pay rent or holds over after expiration of his tenancy and the issue in the ensuing litigation [405 U.S. 56, 65] is simply whether he has paid or held over, we cannot declare that the Oregon statute allows an unduly short time for trial preparation. Tenants would appear to have as much access to relevant facts as their landlord, and they can be expected to know the terms of their lease, whether they have paid their rent, whether they are in possession of the premises, and whether they have received a proper notice to quit, if one is necessary. Particularly where, as here, rent has admittedly been deliberately withheld and demand for payment made, claims of prejudice from an early trial date are unpersuasive. The provision for continuance of the action if the tenant posts security for accruing rent means that in cases where tenant defendants, unlike appellants, deny nonpayment of rent and may require more time to prepare for litigation, they will not be forced to trial if they provide for rent payments in the interim. A requirement that the tenant pay or provide for the payment of rent during the continuance of the action is hardly irrational or oppressive. It is customary to pay rent in advance, and the simplicity of the issues in the typical FED action will usually not require extended trial preparation and litigation, thus making the posting of a large security deposit unnecessary. Of course, it is possible for this provision to be applied so as to deprive a tenant of a proper hearing in specific situations, but there is no such showing made here, and possible infirmity in other situations does not render it invalid on its face. 9
Nor does Oregon deny due process of law by restricting the issues in FED actions to whether the tenant has paid rent and honored the covenants he has assumed, issues that may be fairly and fully litigated under the Oregon procedure. The tenant is barred from raising [405 U.S. 56, 66] claims in the FED action that the landlord has failed to maintain the premises, but the landlord is also barred from claiming back rent or asserting other claims against the tenant. 10 The tenant is not foreclosed from instituting his own action against the landlord and litigating his right to damages or other relief in that action. 11
Underlying appellants' claim is the assumption that they are denied due process of law unless Oregon recognizes the failure of the landlord to maintain the premises as an operative defense to the possessory FED action and as an adequate excuse for nonpayment of rent. The Constitution has not federalized the substantive law of landlord-tenant relations, however, and we see nothing to forbid Oregon from treating the undertakings of the tenant and those of the landlord as independent rather than dependent covenants. Likewise, the Constitution does not authorize us to require that the term of an otherwise expired tenancy be extended while the tenant's damage claims against the landlord are litigated. The substantive law of landlord-tenant relations differs [405 U.S. 56, 69] widely in the various States. In some jurisdictions, a tenant may argue as a defense to eviction for nonpayment of rent such claims as unrepaired building code violations, breach of an implied warranty of habitability, or the fact that the landlord is evicting him for reporting building code violations or for exercising constitutional rights. 15 Some States have enacted statutes authorizing rent withholding in certain situations. 16 In other jurisdictions, these claims, if cognizable at all, must be litigated in separate tort, contract, or civil rights suits. There is no showing that Oregon excludes any defenses it recognizes as "available" on the three questions (physical possession, forcible withholding, legal right to possession) at issue in an FED suit.
We also cannot agree that the FED Statute is invalid on its face under the Equal Protection Clause. It is true that Oregon FED suits differ substantially from other [405 U.S. 56, 70] litigation, where the time between complaint and trial is substantially longer, 17 and where a broader range of issues may be considered. But it does not follow that the Oregon statute invidiously discriminates against defendants in FED actions.
The statute potentially applies to all tenants, rich and poor, commercial and noncommercial; it cannot be faulted for over-exclusiveness or under-exclusiveness. And classifying tenants of real property differently from other tenants for purposes of possessory actions will offend the equal protection safeguard "only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective," McGowan v. Maryland, 366 U.S. 420, 425 (1961), or if the objective itself is beyond the State's power to achieve, Gomillion v. Lightfoot, 364 U.S. 339 (1960); NAACP v. Alabama, 377 U.S. 288 (1964); Douglas v. California, 372 U.S. 353 (1963). It is readily apparent that prompt as well as peaceful resolution of disputes over the right to possession of real property is the end sought by the Oregon statute. 18 It is also clear that the provisions for early trial and simplification of issues are closely related to that purpose. The equal protection claim with respect to these provisions [405 U.S. 56, 71] thus depends on whether the State may validly single out possessory disputes between landlord and tenant for especially prompt judicial settlement. In making such an inquiry a State is "presumed to have acted within [its] constitutional power despite the fact that, in practice, [its] laws result in some inequality." McGowan v. Maryland, supra, at 425-426.
At common law, one with the right to possession could bring an action for ejectment, a "relatively slow, fairly complex, and substantially expensive procedure." 19 But, as Oregon cases have recognized, the common law also permitted the landlord to "enter and expel the tenant by force, without being liable to an action of tort for damages, either for his entry upon the premises, or for an assault in expelling the tenant, provided he uses no more force than is necessary, and do[es] no wanton damage." Smith v. Reeder, 21 Ore. 541, 546, 28 P. 890, 891 (1892). The landlord-tenant relationship was one of the few areas where the right to self-help was recognized by the common law of most States, and the implementation of this right has been fraught with "violence and quarrels and bloodshed." Entelman v. Hagood, 95 Ga. 390, 392, 22 S. E. 545 (1895). 20 An alternative legal remedy to prevent such breaches of the peace has appeared to be an overriding necessity to many legislators and judges.
Hence, the Oregon statute was enacted in 1866 to alter the common law and obviate resort to self-help and violence. The statute, intended to protect tenants as well as landlords, provided a speedy, judicially supervised [405 U.S. 56, 72] proceeding to settle the possessory issue in a peaceful manner:
There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the [405 U.S. 56, 73] landlord continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property. Holding over by the tenant beyond the term of his agreement or holding without payment of rent has proved a virulent source of friction and dispute. We think Oregon was well within its constitutional powers in providing for rapid and peaceful settlement of these disputes.
Appellants argue, however, that a more stringent standard than mere rationality should be applied both to the challenged classification and its stated purpose. They contend that the "need for decent shelter" and the "right to retain peaceful possession of one's home" are fundamental interests which are particularly important to the poor and which may be trenched upon only after the State demonstrates some superior interest. They invoke those cases holding that certain classifications based on unalterable traits such as race 21 and lineage 22 are inherently suspect and must be justified by some "overriding statutory purpose." They also rely on cases where classifications burdening or infringing constitutionally protected rights were required to be justified as "necessary to promote a compelling governmental interest." 23 [405 U.S. 56, 74]
We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions. Nor should we forget that the Constitution expressly protects against confiscation of private property or the income therefrom.
Since the purpose of the Oregon Forcible Entry and Wrongful Detainer Statute is constitutionally permissible and since the classification under attack is rationally related to that purpose, the statute is not repugnant to the Equal Protection Clause of the Fourteenth Amendment.
We agree with appellants, however, that the double-bond prerequisite for appealing an FED action violates their right to the equal protection of the laws. To appeal a civil case in Oregon, the ordinary litigant must file an undertaking, with one or more sureties, covering "all damages, costs and disbursements which may be awarded against him on the appeal." ORS 19.040. 24 In order to secure a stay of execution, the undertaking, where the judgment is for money, must also provide that the appellant [405 U.S. 56, 75] will satisfy the judgment if he loses the appeal or, if the judgment is for real property, that he will commit no waste during the pendency of the appeal and, if he loses the appeal, that he will pay for the use of the property during this time. In an FED action, however, a defendant who loses in the district court and who wishes to appeal must give "in addition to the undertaking now required by law upon appeal," an undertaking with two sureties for the payment of twice the rental value of [405 U.S. 56, 76] the premises "from the commencement of the action in which the judgment was rendered until final judgment in the action." ORS 105.160. (Emphasis added.) In the event the judgment is affirmed, the landlord is automatically entitled to twice the rents accruing during the appeal without proof of actual damage in that amount. See Priester v. Thrall, 229 Ore. 184, 187, 349 P.2d 866, 868 (1960). In Scales v. Spencer, 246 Ore. 111, 113-114, 424 P.2d 242, 243 (1967), the Oregon Supreme Court explained the rationale of the double-bond requirement:
This Court has recognized that if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review, Griffin v. Illinois, 351 U.S. 12, 18 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627 (1937); Ohio v. Akron Park District, 281 U.S. 74, 80 (1930); Reetz v. Michigan, 188 U.S. 505, 508 (1903); McKane v. Durston, 153 U.S. 684, 687 -688 (1894), and the continuing validity of these cases is not at issue here. When an appeal is afforded, however, it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause. Griffin v. Illinois, supra; Smith v. Bennett, 365 U.S. 708 (1961); Lane v. Brown, 372 U.S. 477 (1963); Long v. District Court of Iowa, 385 U.S. 192 (1966); Gardner v. California, 393 U.S. 367 (1969). Cf. Coppedge v. United States, 369 U.S. 438 (1962); Ellis v. United States, 356 U.S. 674 (1958).
It cannot be denied that the double-bond requirement heavily burdens the statutory right of an FED defendant to appeal. While a State may properly take steps to insure that an appellant post adequate security before an appeal to preserve the property at issue, to guard a damage award already made, or to insure a landlord against loss of rent if the tenant remains in possession, the double-bond requirement here does not effectuate these purposes since it is unrelated to actual rent accrued or to specific damage sustained by the landlord. This requirement is unnecessary to assure the landlord payment of accrued rent since the undertaking an FED defendant must file pursuant to the general appeal bond statute, ORS 19.040 (b), must cover "the value of the use and occupation of such property . . . from the time of the appeal until the delivery of the possession thereof," [405 U.S. 56, 78] and since the landlord may bring a separate action at law for payment of back rent under ORS 91.220. 25 Moreover, the landlord is protected against waste or damages occurring during the appeal by the 19.040 (b) undertaking that the tenant must file if he wishes to remain in possession of the property during the appeal. The claim that the double-bond requirement operates to screen out frivolous appeals is unpersuasive, for it not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond. The impact on FED appellants is unavoidable: if the lower court decision is affirmed, the entire double bond is forfeited; recovery is not limited to costs incurred by the appellee, rent owed, or damage suffered. No other appellant is subject to automatic assessment of unproved damages. We discern nothing in the special purposes of the FED statute or in the special characteristics of the landlord-tenant relationship to warrant this discrimination.
We do not question here reasonable procedural provisions to safeguard litigated property, cf. National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37 (1954), or to discourage patently insubstantial appeals, if these rules are reasonably tailored to achieve these ends and if they are uniformly and nondiscriminatorily applied. Moreover, a State has broad authority to provide for the recovery of double or treble damages in cases of illegal conduct that it regards as particularly reprehensible, even though posting an appeal bond by an appellant will be doubly or triply more difficult than it otherwise would be. In the case before us, however, the [405 U.S. 56, 79] State has not sought to protect a damage award or property an appellee is rightfully entitled to because of a lower court judgment. 26 Instead, it has automatically doubled the stakes when a tenant seeks to appeal an adverse judgment in an FED action. The discrimination against the poor, who could pay their rent pending an appeal but cannot post the double bond, is particularly obvious. For them, as a practical matter, appeal is foreclosed, no matter how meritorious their case may be. The nonindigent FED appellant also is confronted by a substantial barrier to appeal faced by no other civil litigant in Oregon. The discrimination against the class of FED appellants is arbitrary and irrational, and the double-bond requirement of ORS 105.160 violates the Equal Protection Clause.
The judgment of the District Court is
[ Footnote 2 ] It was stipulated that city inspectors found rusted gutters, broken windows, broken plaster, missing rear steps, and improper sanitation, all in violation of the Portland Housing Code, and that the inspectors posted a notice that the dwelling was required to be vacated within 30 days unless the owner could show cause why the building should not be declared unfit for occupancy. App. 43.
[ Footnote 3 ] In its entirety, the Oregon Forcible Entry and Wrongful Detainer Statute provides:
To the sheriff or any constable of the country:
Whereas, a certain action for the forcible entry and detention, (or the forcible detention) of the following described premises, to wit: _________________________, lately tried before the above entitled court, wherein _______________ was plaintiff and _____________ was defendant, judgment was rendered on the ____ day of _____, A. D., _____, that the plaintiff ___________ have restitution of the premises, and also that he recover the costs and disbursements in the sum of $ _______;
In the name of the State of Oregon, you are, therefore, hereby commanded to cause the defendant and his goods and chattels to be forthwith removed from the premises and the plaintiff is to have restitution of the same. In the event the goods and chattels are not promptly removed thereafter by the defendant you are authorized and empowered to cause the same to be removed to a safe place for storage. You are also commanded to levy on the goods and [405 U.S. 56, 62] chattels of the defendant, and make the costs and disbursements, aforesaid, and all accruing costs, and to make legal service and due return of this writ.
Witness my hand and official seal (if issued out of a court of record) this ______ day of ______, A. D., ______.
[ Footnote 4 ] Civ. No. 70-8, Sept. 10, 1970, D. Ore. (unreported). Reprinted at App. 72.
[ Footnote 5 ] The District Court correctly declined to abstain from considering the constitutionality of the FED Statute since: "The challenged statute is clear. It is unlikely that an application of state law would change the posture of the federal constitutional issues. No state administrative process is involved. The case has been thoroughly briefed and argued on the merits, and is presented on a clear and complete record." App. 73. Since the judicially created doctrine of abstention involves duplication of effort and expense and an attendant delay, see England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 418 (1964), this Court has emphasized that it should be applied only "where the issue of state law is uncertain," [405 U.S. 56, 63] Harman v. Forssenius, 380 U.S. 528, 534 (1965), and "only in narrowly limited `special circumstances,'" Zwickler v. Koota, 389 U.S. 241, 248 (1967) (citing Propper v. Clark, 337 U.S. 472, 492 (1949)). See Reetz v. Bozanich, 397 U.S. 82 (1970). The Oregon FED Statute had been in effect for over 100 years, and there is a substantial body of interpretative decisions by the Oregon courts.
[ Footnote 7 ] If the FED action is initiated in the district court instead of the circuit court, the double bond is required for a trial de novo in the circuit court. ORS 46.250, 53.090. Appellants do not, however, contend that there is anything unconstitutional about the District Court trial, except for the claims noted above, and they do not contend that the dual level trial system itself violates their constitutional rights. Brief for Appellants 63.
[ Footnote 8 ] Appellants make a conclusory argument that allowing a landlord to allege that the tenant is guilty of "unlawful holding by force" is impermissible on grounds of vagueness. Brief for Appellants 58-59. ORS 105.115 adequately defines this term, however, see n. 3, supra, and the District Court properly rejected this argument.
[ Footnote 10 ] ORS 16.220 (1) (i) provides that when a plaintiff joins an FED action with an action for rental due, "the defendant shall have the same time to answer, or otherwise plead, as is now provided by law in actions for the recovery of rental due." ORS 91.220 provides that accrued rent may be recovered in an "action at law" which is subject to the general rules of pleading and procedure enumerated in 16.010 and not the special FED procedures.
[ Footnote 11 ] Oregon also recognizes certain equitable defenses in FED actions, see Leathers v. Peterson, 195 Ore. 62, 244 P.2d 619 (1952) (mental incompetence); Crossen v. Campbell, 102 Ore. 666, 202 P. 745 (1921) (forfeiture of lease); Friedenthal v. Thompson, 146 Ore. 640, 31 P.2d 643 (1934) (reformation of lease); Menefee Lumber Co. v. Abrams, 138 Ore. 263, 5 P.2d 709 (1931) (lessor's breach of dependent covenant not to rent another part of premises to business competitive with lessee - tried by stipulation), and ORS 16.460 provides that when an equitable matter is interposed, the FED action will be stayed until the equitable matters are determined. Apparently, however, the defenses sought to be raised by appellants are not in this category.
[ Footnote 12 ] This claim is explicitly presented in the complaint: "For their cause of action, said Plaintiffs set forth the following: . . . (c) That said Defendant-Landlords have a duty to refrain from taking retaliatory [405 U.S. 56, 67] measures against said Plaintiffs as a result of this action or as a result of reporting Housing Code violations or as a result of Plaintiffs withholding rent to compel the Defendant-Landlords to repair the premises." App. 24. Appellants stipulated that, if permitted, they would raise various legal and equitable defenses (unconstitutionality of the proceeding, illegality of contract, failure of consideration, warranty of fitness of habitability, unclean hands of landlord) if an FED action were brought against them. App. 44. It is sufficiently clear from the District Court's pretrial order that all of the parties, including the defendant state court judge, agreed that the defenses appellants desired to press were unavailable in Oregon FED actions. The District Court agreed that this accurately reflected Oregon law. In these circumstances, therefore, there was no reason for the District Court to abstain. See n. 5, supra.
[ Footnote 13 ] At oral argument, appellants conceded that if a tenant remained in possession without paying rent, a landlord might be deprived of property without due process of law:
[ Footnote 14 ] "It would be a surprising extension of the Fourteenth Amendment if it were held to prohibit the continuance of one of the most universal and best known distinctions of the medieval law. From the exceptio spolii of the Pseudo-Isidore the Canon Law and Bracton to the assize of novel disseisin the principle was of very wide application that a wrongful disturbance of possession must be righted before a claim of title would be listened to - or at least that in a proceeding to right such disturbance a claim of title could not be set up; and from Kant to Ihering there has been much philosophising as to the grounds. But it is unnecessary to follow the speculations or to consider whether the principle is eternal or a no longer useful survival. The constitutionality of the law is independent of our views upon such points." Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133, 134 (1915).
[ Footnote 15 ] For various tenant remedies for housing code violations, see N. Y. Real Prop. Actions Law 769-782 (Supp. 1971-1972); Brown v. Southall Realty Co., 237 A. 2d 834 (D.C. Ct. App. 1968); S. D. Comp. Laws Ann. 43-32-9 (1967). For recognition of an implied warranty of habitability, see Pines v. Perssion, 14 Wis. 2d 590, 111 N. W. 2d 409 (1961); Earl Millikin, Inc. v. Allen, 21 Wis. 2d 497, 124 N. W. 2d 651 (1963); Cal. Civ. Code 1941 (1954 and Supp. 1971). For prohibitions against various kinds of retaliatory evictions, see Ill. Rev. Stat., c. 80, 71 (1971); Mich. Comp. Laws 564.204, added by Pub. Acts 1968, c. 2, Mich. Stat. Ann. 26.1300 (204) (1970); Edwards v. Habib, 130 U.S. App. D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016 (1969); United States v. Bruce, 353 F.2d 474 (CA5 1965); United States v. Beaty, 288 F.2d 653 (CA6 1961).
[ Footnote 16 ] N. Y. Mult. Resid. Law 305-a (Supp. 1971-1972); Ill. Rev. Stat., c. 23, 11-23 (1971); Mass. Gen. Laws Ann., c. 239, 8A (Supp. 1971); Pa. Stat. Ann., Tit. 35, 1700-1 (Supp. 1971). See generally Comment, Rent Withholding and the Improvement of Substandard Housing, 53 Calif. L. Rev. 304 (1965).
[ Footnote 17 ] An FED defendant has from two to six days between the serving of the complaint and trial unless he files a continuance bond. See 105.135, 105.140, n. 3, supra.
[ Footnote 18 ] The Statute itself declares the public policy of the State of Oregon to be that: "No person shall enter upon any land, tenement or other real property unless the right of entry is given by law. When the right of entry is given by law the entry shall be made in a peaceable manner and without force." 105.105. One out of actual possession of real property, although lawfully entitled to such possession, is liable criminally for assault and battery if, instead of filing an FED action, he accomplishes an entry upon such real property by the exertion of force against the person of an actual occupant who opposes and resists such entry. Coghlan v. Miller, 106 Ore. 46, 54-56, 211 P. 163, 166-167 (1922).
[ Footnote 19 ] A. Casner & W. Leach, Cases and Text on Property 451 (2d ed. 1969).
[ Footnote 20 ] See Annot., Right of Landlord to Dispossess Tenant Without Legal Process, 45 A. L. R. 313 (1926), 49 A. L. R. 517 (1927), 60 A. L. R. 280 (1929), 101 A. L. R. 476 (1936), 6 A. L. R. 3d 177 (1966).
[ Footnote 22 ] Korematsu v. United States, 323 U.S. 214 (1944); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948); Oyama v. California, 332 U.S. 633 (1948); Levy v. Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73 (1968).
[ Footnote 23 ] Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis omitted) (right to travel). See also Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668 (1966) (right to vote). Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
[ Footnote 24 ] The Oregon civil appeal bond statute provides:
[ Footnote 25 ] The 19.040 (b) undertaking does not, it is true, cover any rent that has accrued from the time the FED action is filed until the time the appeal is taken. However, the 105.145 continuance bond filed by the tenant if the pretrial delay is over six days provides security for this rent, or such rent may be recovered as back rent in the 91.220 action at law.
[ Footnote 26 ] Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949), is distinguishable from the instant case. There, the Court upheld a state law that required a shareholder who wished to file a shareholder's derivative suit but who owned less than 5% of the corporation's stock or whose stock was worth less than $50,000 to file as a precondition to bringing the suit a bond for the reasonable expenses, including attorney's fees, that might be incurred by defendants. The security requirement there applied to a plaintiff and its purpose was to protect the corporation from being injured by "strike suits" that harmed the very interests that plaintiffs claimed to be protecting.
MR. JUSTICE DOUGLAS, dissenting in part.
I agree with the Court that the double-bond provision in the Oregon eviction statute denies tenants who are affected by forcible entry and wrongful detainer procedures [405 U.S. 56, 80] (called FED) that equal protection guaranteed against state action by the Fourteenth Amendment.
The ordinary or customary litigant who appeals must file a bond with one or more sureties covering "all damages, costs and disbursements which may be awarded against him on the appeal." 1 To obtain a stay of execution pending the appeal the undertaking must also provide: (1) if the suit is for recovery of money or personal property (or its value), that the appellant will satisfy the claim if he loses the appeal and (2) if the judgment is for the recovery of possession of real property, for a partition or for the foreclosure of a lien, that during possession the appellant will not commit waste and that if he loses the appeal, he will pay the value of the use of the property during the appeal.
By contrast, if a tenant in an FED action appeals, he must give "in addition to the undertaking now required by law upon appeal" 2 an undertaking with two sureties for payment of twice the rental value of the premises from the commencement of the action until final judgment.
The more onerous requirement placed on tenants is said to be a guarantee that rent pending appeal will be paid. Scales v. Spencer, 246 Ore. 111, 424 P.2d 242. Yet the general appeal statute would give that protection. 3 [405 U.S. 56, 81]
It is said that the landlord deserves protection for waste or damages pending appeal. Ibid. But that protection is also provided under the general appeal statute.
It is said that a double-rent bond protects the landlord against possible waste or damage which occurs prior to, not during, the appeal. But the same reason would be germane to waste or damage in other suits brought to obtain possession of property. Drawing the line between the present suits to obtain possession and other suits and saddling tenants with double-rent bonds but not saddling other owners with such bonds seems to me obviously an invidious discrimination.
It is said that the double-rent bond is designed to prevent frivolous appeals taken for the sole purpose of delaying eviction as long as possible. Ibid. Yet frivolous appeals could as well be taken by defendants whose lien is being foreclosed and who desire to remain in possession. It is an invidious discrimination at which the Equal Protection Clause is aimed for a legislature to select one class of appellants who seek to retain possession of property and place a more onerous condition on their right to appeal than is placed on other like appellants.
In sum, the double-bond procedure is landlord legislation, not evenly weighted between his proprietary interest in the property and the rights of the tenants. Over a third of our population lives in apartments or other rented housing. 4 The home - whether rented or [405 U.S. 56, 82] owned - is the very heart of privacy in modern America. MR. JUSTICE MARSHALL in Hall v. Beals, 396 U.S. 45, 52 (dissenting), spoke of the protection afforded "fundamental interests" when it came to classifications made by legislatures. In that case it was the franchise. Race is in the same category (McLaughlin v. Florida, 379 U.S. 184 ); so are wealth (Douglas v. California, 372 U.S. 353 ; Harper v. Virginia Bd. of Elections, 383 U.S. 663 ); procreation (Skinner v. Oklahoma, 316 U.S. 535 ); and interstate travel (Shapiro v. Thompson, 394 U.S. 618 ). Classifications that burden, impinge, or discriminate against such fundamental interests 5 are "highly suspect." McDonald v. Board of Elections, 394 U.S. 802, 807 .
Modern man's place of retreat for quiet and solace is the home. Whether rented or owned, it is his sanctuary. Being uprooted and put into the street is a traumatic experience. Legislatures can, of course, protect property interests of landlords. But when they weight the scales as heavily as does Oregon for the landlord and against the fundamental interest of the tenant they must be backed by some "compelling . . . interest," Kramer v. Union School District, 395 U.S. 621, 627 . No such "compelling . . . interest" underlies this statutory scheme.
The double-rent bond required of tenants, but not required of others in possession of real estate, is properly held to be unconstitutional by reason of the Equal Protection Clause of the Fourteenth Amendment.
I cannot agree, however, that the remainder of Oregon's FED Statute satisfies the requirements of due process of law. [405 U.S. 56, 83]
I am satisfied that the Court properly addresses itself to the remaining questions rather than requiring appellants, who are already destitute, to start litigation all over in the Oregon state courts. The three-judge court that decided this case is a panel of distinguished Oregon lawyers and judges. Judge Goodwin came to the District Court from the Supreme Court of Oregon. Judge Solomon has practiced and sat in Portland, Oregon, for years. Judge Kilkenny was a well-known practitioner in Pendleton, Oregon, before coming to the federal bench. These men have their roots deep in Oregon law and are by no means outsiders unfamiliar with it. On local-law questions we have long deferred to federal judges who have come from law practice in a State whose local law is at issue in a federal case. See MacGregor v. State Mutual Co., 315 U.S. 280, 281 ; Huddleston v. Dwyer, 322 U.S. 232, 237 ; Bernhardt v. Polygraphic Co., 350 U.S. 198, 204 ; Magenau v. Aetna Freight Lines, 360 U.S. 273, 281 n. 2 (Frankfurter, J., dissenting).
This is a most appropriate occasion to honor that tradition. While there are occasional appropriate cases for abstention (see Reetz v. Bozanich, 397 U.S. 82 ), this Court's abstention doctrine that requires litigants to start all over again in a state court after having financed their course all the way to this Court is likely to exhaust only the litigants.
This all-Oregon panel said on the abstention issue:
In my view, there are defects in the Oregon procedures which go to the essence of a litigant's right of access to the courts, whether he be rich or poor, black or white.
The problem starts with Judge Wright's statement in Javins v. First National Realty Corp., 138 U.S. App. D.C. 369, 372, 428 F.2d 1071, 1074:
Oregon gives the tenant "not less than two or more than four days" 6 after service of summons to go to trial. If service is on a Friday, trial could be on the following Monday. There can be no continuance for more than two days "unless the defendant . . . gives an undertaking . . . with good and sufficient security" covering the rent which may accrue during the trial. 7
For slum tenants - not to mention the middle class - this kind of summary procedure usually will mean in actuality no opportunity to be heard. Finding a lawyer in two days, acquainting him with the facts, and getting necessary witnesses make the theoretical opportunity to be heard and interpose a defense a promise of empty words. It is, indeed, a meaningless notice and opportunity to defend. The trial is likely to be held in the presence of only the judge and the landlord and the landlord's attorney. 8
Moreover, even for tenants who have been lucky to find a lawyer, the landlord need only plead 9 and prove 10 the following items in order to win a judgment: (1) a description of the premises, (2) that the defendant is in possession of the premises, (3) that he entered upon them "with force," or unlawfully holds them "with force," 11 and (4) that the plaintiff is entitled to possession. [405 U.S. 56, 86]
Affirmative defenses such as the failure of the landlord to make repairs or that the motivation for the eviction was retaliation for a report by the tenant of a violation of a housing code are apparently precluded. This reflects the ancient notion that a lease is a conveyance of an "estate in land," in which the respective covenants - a tenant's to pay rent, the landlord's to repair - were deemed independent of each other. This approach was appropriate in the feudal culture in which property law evolved. 12 But this feudal notion of landlord-tenant law - rooted in the special needs of an agrarian society - has not been a realistic approach to [405 U.S. 56, 87] landlord-tenant law for many years, 13 and has been replaced by what eminent authorities have described as "a predominately contractual" analysis of leasehold interests. 14 This led Judge Wright in Javins v. First National Realty Corp., 138 U.S. App. D.C., at 373, 428 F.2d, at 1075, to hold "that leases of urban dwelling units should be interpreted and construed like any other contract." Oregon takes the same view and treats a lease as a contract. Wright v. Baumann, 239 Ore. 410, 398 P.2d 119; Eggen v. Wetterborg, 193 Ore. 145, 237 P.2d 970.
The Housing Code of Portland, Oregon, has as its declared purpose the protection of the life, health, and welfare of the public and of the owners and occupants of residential buildings. 15 It forbids anyone to use or permit a building to be used in violation of its provisions. Id., 8-204. [405 U.S. 56, 88]
We do not know what Oregon would hold if a lease in violation of a housing code was before it in an FED case. But if the lease is a contract, then the opportunity to be heard would certainly embrace the issue of legality, if due process is to have any real significance. Oregon's statutory FED scheme is plainly to protect landlords against loss of rental income during lengthy litigation. See Menefee Lumber Co. v. Abrams, 138 Ore. 263, 5 P.2d 709; Friedenthal v. Thompson, 146 Ore. 640, 31 P.2d 643. But that is no justification for denial to tenants of due process, as there are other less drastic devices for protecting the landlord. Judge Wright in the Javins case, 138 U.S. App. D.C., at 381 n. 67, 428 F.2d, at 1083 n. 67, proposed "an excellent protective procedure" in the form of a requirement that the tenant, who raises an affirmative defense based on housing code violations or other discriminatory landlord practices, pay rent into court as it became due. 16 See also Bell v. Tsintolas Realty Co., 139 U.S. App. D.C. 101, 430 F.2d 474. The District Court in the present case employed a similar procedure.
Appellees assert that the affirmative defenses mentioned are not relevant to the issues posed under Oregon's FED Act. They represent to us that the Oregon judges at the trial level have usually held that such defenses are not relevant, though the Oregon Supreme Court has not considered the question. What Oregon will hold or should hold is not the issue. Since, however, Oregon holds that a lease is a contract, all defenses [405 U.S. 56, 89] relevant to its legality and its actual operation would seem to be within the ambit of the opportunity to be heard that is embraced within the concept of due process, at least until the issue has been resolved to the contrary.
The Court suggests that landlord-tenant law raises no federal questions. This is not quite so clear to me. We have held that the right to complain to public authorities is constitutionally protected. In re Quarles, 158 U.S. 532 . If a defendant in an FED action is denied the right to assert as a defense the claim that he is being evicted, not for the nonpayment of rent, but because he exercised his constitutional right to complain to public officials about the disrepair of his apartment, a substantial federal question would be presented. See Edwards v. Habib, 130 U.S. App. D.C. 126, 129-137, 397 F.2d 687, 690-698 (1968).
The Court also implies that to find for appellants in this case, we would have to hold, as a matter of constitutional law, that a lease is required to be interpreted as an ordinary contract. But this is not at all necessary. Oregon has already adopted the modern, contractual view of leasehold analysis. The issue that confronts the Court is not whether such a view is constitutionally compelled, but whether, once Oregon has gone this far as a matter of state law, the requirements of due process permit a restriction of contract-type defenses in an FED action. Cf. Shapiro v. Thompson, 394 U.S., at 627 n. 6; Sherbert v. Verner, 374 U.S. 398, 404 -406.
Normally a State may bifurcate trials, deciding, say, the right to possession in one suit and the right to damages in another. See Bianchi v. Morales, 262 U.S. 170 ; American Surety Co. v. Baldwin, 287 U.S. 156 .
But where the right is so fundamental as the tenant's claim to his home, the requirements of due process should be more embracing. In the setting of modern urban [405 U.S. 56, 90] life, the home, even though it be in the slums, is where man's roots are. To put him into the street when the slum landlord, not the slum tenant, is the real culprit deprives the tenant of a fundamental right without any real opportunity to defend. Then he loses the essence of the controversy, being given only empty promises that somehow, somewhere, someone may allow him to litigate the basic question in the case.
Bianchi v. Morales, supra, which sanctioned the bifurcated trial in the rural setting of Puerto Rico, where the contest was between mortgagor and mortgagee, would be an insufferable addition to the law of the modern ghetto.
A judgment obtained by the landlord, whether by default or otherwise, gives him the right to levy on the goods of the tenant to recover the costs and disbursements of the suit. 17 Moreover, any past waste or damages, which are covered by the appeal bond, are not an issue in litigation in FED cases. As noted, the issues in Oregon FED cases are limited and the proceedings summary. Making the tenant liable for past waste or damage through the device of an appeal bond when he has no real opportunity to defend is a manifest denial of due process.
I dissent from an affirmance of this judgment.
[ Footnote 1 ] Ore. Rev. Stat. 19.040 (1).
[ Footnote 2 ] Id., 105.160.
[ Footnote 3 ] The general appeal statute (Ore. Rev. Stat. 19.040 (1)), however, applies only to appeals from the trial court of general jurisdiction (circuit court). FED actions may be brought in the circuit court, Ore. Rev. Stat. 105.110, but are also within the jurisdiction of the district and justice of the peace courts - courts of limited jurisdiction. Ibid. A litigant may appeal from these courts to the circuit court, Ore. Rev. Stat. 46.250, in which case trial is had de novo, and may stay an adverse decision pending appeal by giving an undertaking, with one or more sureties, that he will pay all costs and disbursements against him awarded on the appeal, and [405 U.S. 56, 81] that he will satisfy any judgment that might be entered against him by the appellate court. Ore. Rev. Stat. 53.040.
Appellees argue that the undertaking provided for by Ore. Rev. Stat. 53.040 is inadequate to protect landlords' rights. The answers are two. First, the landlord has the prerogative to bring suit in the circuit court, should he desire the greater protection of the general appeal statute. Second, the legislature could provide that the general appeal statute apply to FED actions brought in the district, as well as circuit, courts.
[ Footnote 4 ] 1970 Census of Housing, Advance Report HC (V. 1), p. 11.
[ Footnote 5 ] The "rational" relationship test applied to strictly economic or business interests (United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6 ; McDonald v. Board of Elections, 394 U.S. 802, 809 ) is not germane here.
[ Footnote 6 ] Ore. Rev. Stat. 105.135.
[ Footnote 7 ] Id., 105.140.
[ Footnote 8 ] The majority stresses the "fact" that a tenant may have up to six days to prepare for trial. But as of right, the statute guarantees only two. While various discretionary actions may result in a tenant's having the full six days, "[t]he right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion." Roller v. Holly, 176 U.S. 398, 409 .
[ Footnote 9 ] Ore. Rev. Stat. 105.125.
[ Footnote 10 ] Id., 105.145.
[ Footnote 11 ] "Unlawful holding by force" is defined by Ore. Rev. Stat. 105.115 to occur in the following circumstances: (1) if a tenant "fails or refuses to pay rent within 10 days after it is due" pursuant to a lease or agreement, (2) if he fails or refuses "to deliver possession [405 U.S. 56, 86] of the premises after being in default on payment of rent for 10 days," (3) if he remains in possession after receipt of a statutory notice to quit (see Ore. Rev. Stat. 105.120) and was holding under an expired lease or was a month-to-month or year-to-year tenant, or (4) if he "is holding contrary to any condition or covenant of the lease" or "without any written lease or agreement."
[ Footnote 12 ] "Under feudal tenure, and in more recent times, in the setting of a largely agrarian society, the tenant rented land primarily for the production of crops. The fact that a building or dwelling stood on the premises was, in the main, incidental, because the major emphasis was on the tenant's right to till the soil for the production of crops to supply him a livelihood. For as long as the tenant rented the land he was the holder of an estate for years; in effect, he was the owner for a limited term. If he wanted to live in comfort, and if a dwelling stood on the land, it was his business to make that dwelling livable, to see to it that the roof was watertight, that the well was in good shape, and that whatever sanitary facilities there were, were adequate. While he was not to commit `waste' - destruction of the property that would leave it in less productive condition than when he rented it - the owner owed him no obligation to assist in maintaining his buildings in a livable or decent condition.
[ Footnote 13 ] "The legal rules pertaining to the repair of leaseholds became wholly unreal and anachronistic with increasing urbanization during the 19th century, with the increasing reliance on multi-unit rental property, such as tenement houses, to provide shelter for the urban areas' growing industrial labor population. In an agrarian setting it made sense to require the tenant to keep in good repair an entire dwelling house he had rented from an owner. On the other hand, to require a relatively transient tenant to assume the obligation of repair in a multi-unit building or in a tenement house with respect to his rooms and with respect to plumbing, heating, and other fixtures that were interconnected with other parts and fixtures in the building made no sense at all." Id., at 111-112.
[ Footnote 14 ] R. Powell & P. Rohan, Real Property 179 (1967).
[ Footnote 15 ] Housing Code 8-102.
[ Footnote 16 ] Oregon's continuance bond, Ore. Rev. Stat. 105.140, serves the same function:
[ Footnote 17 ] Ore. Rev. Stat. 105.155.
MR. JUSTICE BRENNAN, dissenting in part.
In my view the District Court erred in declining to apply the doctrine of abstention with respect to the availability of defenses in FED actions. * The issue [405 U.S. 56, 91] is whether Oregon would violate the Fourteenth Amendment if its substantive law in some circumstances recognized a tenant's rights to withhold rent and retain possession based on the landlord's breach of duty to maintain the premises, but its procedural law would not permit assertion of those rights in defense of an FED action. This constitutional issue is ripe for decision if, and only if, Oregon law (1) recognizes substantive rights of the tenant based on the landlord's breach of duty; (2) recognizes, because of such breach, that a tenant may remain in possession while withholding rent during the term or may hold over after expiration of the term, and (3) excludes the assertion of these rights to continued possession as a defense to an FED action.
The Court's opinion exposes the fallacy of the District Court's conclusion that Oregon law is "clear" and that "[i]t is unlikely that an application of state law would change the posture of the federal constitutional issues." App. 73. For the Court cites Oregon decisions that have recognized certain equitable defenses in FED actions, ante, at 66 n. 11, and can only conjecture that the defenses appellants sought to raise are "apparently" not in this category. We cannot confidently say, therefore, how the Oregon courts would treat appellants' defenses, if available at all, when asserted in an FED suit, or how, if those defenses are available in FED suits, the Oregon courts would apply the requirement of a trial no later than six days after service of process. Clearly, therefore, the Oregon law is susceptible of a "construction by the state courts that would avoid or modify the constitutional question." Zwickler v. Koota, 389 U.S. 241, 249 (1967); Reetz v. Bozanich, 397 U.S. 82 (1970). In these circumstances the District Court should have remitted appellants to the Oregon courts for an authoritative interpretation of Oregon law in [405 U.S. 56, 92] these respects before adjudicating appellants' plainly nonfrivolous constitutional attacks upon the FED Statute.
I would vacate the judgment of dismissal and remand with direction to the District Court (1) to enter judgment declaring that the double-bond requirement of Ore. Rev. Stat. 105.160 violates the Equal Protection Clause, and (2) to retain jurisdiction and reinstate the temporary restraining order conditioned on the payment of rent into the escrow account, provided appellants, within a time fixed by the District Court, institute appropriate proceedings in the Oregon courts to obtain an authoritative interpretation of the FED Statute with respect to defenses available in actions thereunder.
[ Footnote * ] Abstention on the double-bond provision is not required in light of the Oregon Supreme Court's decision in Scales v. Spencer, 246 Ore. 111, 424 P.2d 242 (1967). I agree with the Court that this provision violates the Equal Protection Clause. [405 U.S. 56, 93]