Property Rights

Lawsuit Challenges Ordinance Requiring Eviction of Entire "Household" if One Member Has Committed a Crime

The case was brought on the family's behalf by the Institute for Justice, a prominent public interest law firm.

|The Volokh Conspiracy |

A Granite City, Illinois family recently filed a lawsuit challenging the constitutionality of an ordinance that mandates the eviction of tenants any time anyone in their "household" has "engaged in criminal activity" within the city, "engage[d] in any act intended to facilitate criminal activity" anywhere in Granite City, or committed a "forcible felony" anywhere at all. In this case, the City is trying to evict Jessica Baron, Kenny Wylie, and their three children because a friend of their teenage son who had been temporarily staying with the family committed a burglary at a nearby restaurant. The Institute for Justice, the libertarian public interest law firm representing the family and their landlord (William Campbell), has more details on the case here. The complaint recently filed in federal district court is available here.

The Granite City ordinance requires eviction of the entire household regardless of whether all the members participated in the crime or even knew about it. It applies regardless of whether the offender is actually a permanent member of the household or merely a temporary one. And eviction is required even if the landlord would like the family to stay. In this case, the landlord wants exactly that, and has even joined the lawsuit challenging the ordinance.

Sadly, Granite City is far from the only jurisdiction that has this kind of "crime-free housing" ordinance. Illinois alone has some 50 other jurisdictions with similar laws. An ACLU report documented some 50 others in the Twin Cities area in Minnesota. There are likely more in other parts of the country. These ordinances were apparently an outgrowth of the wave of "tough on crime" laws of the 1980s and 1990s, though  widespread adoption of the more restrictive versions of them only seems to have begun after the Supreme Court upheld similar rules for public housing in 2002.

Punishing entire families for the crimes of one member—or in this case for those of one family friend—is the kind of barbaric policy we normally associate with brutal authoritarian regimes. It's not something that should happen in a nation that aspires to be a free society. In 2016, the Obama Administration Department of Housing and Urban Development issued a guidance warning that such laws can have the perverse effect of mandating eviction of domestic-violence victims who report their abusers. Both victims and abusers are often members of the same household, so the law requires the eviction of all of them!

This kind of law is also blatantly unconstitutional. The lawsuit filed by the Institute for Justice on behalf of the Wylie/Baron family contends that it violates the Due Process Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment. They are right on both counts.

A lease is a type of property right, and long-established precedent indicates that it is covered by the Takings Clause, which bars the government from taking "private property" without paying "just compensation." In this case, the government has forcibly deprived the family of their lease without paying any compensation whatsoever.

The Due Process Clause of the Fourteenth Amendment bars state and local governments from depriving anyone of "life, liberty, or property, without due process of law." Under crime-free housing ordinances, entire families can be deprived of their leasehold property rights without any indication of wrongdoing on their part and without any of the protections normally associated with criminal or civil penalties. Unlike in the case of asset forfeitures (another constitutionally suspect practice), the government need not even prove that the leased property had any connection to the crime in question, which (as in this case) could have been committed elsewhere.

The complaint argues that the Granite City ordinance also violates the Equal Protection Clause of the Fourteenth Amendment. I am much less persuaded by this theory than the other two. But, regardless, the ordinance should be struck down because it is clearly both an uncompensated taking and a deprivation of property rights without due process of law.

In 2002, the Supreme Court upheld a similar compulsory-eviction policy for federal public-housing tenants. But the Court made clear that it did so largely because "[t]he government is not attempting to criminally punish or civilly regulate respondents as members of the general populace. It is instead acting as a landlord of property that it owns, invoking a clause in a lease to which respondents have agreed and which Congress has expressly required." In this case, Granite City clearly is regulating tenants "as members of the general populace" and it mandates eviction even in cases where the tenants have not violated any clause in their lease and the landlord wants them to stay. Landlords and tenants are required to abide by the mandatory-eviction rule regardless of whether they have voluntarily agreed to it or not.

NOTE: I have worked with the Institute for Justice on many other property rights cases, and was a student law clerk there during the summer of 1998. But I have no involvement in the present case.

UPDATE: I have added a clarification to the sentence describing the historical origins of these types of laws, as the original version made it seem like most were enacted earlier than was actually the case. I apologize for any confusion.

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  1. How many Illinois governor’s families have been evicted after said governor went to jail?

    1. If the inmate governor’s fifth cousin twice removed commits a crime while in prison, do they evict both of them?

      1. That’s the perfect way to get out of jail. Just commit a crime in jail and then demand to be “evicted”.

  2. Where are these families supposed to go? Could another landlord in the city rent to them or are they prohibited from renting any property in the city limits? What if the same landlord rents another property to the family?

    The government is also “taking” from both the tenant and the landlord. The landlord will lose income and incur expenses re-leasing the property and the family loses a home and incurs expenses to relocate.

    1. According to paragraph 35 of the complaint, “nothing in the compulsory-eviction law prevents the same landlord from renting any other property in Granite City to the same evicted tenants. Nor does the compulsory-eviction law prevent any other landlord from renting any other property in Granite City to those tenants.”

      1. If that is the case what can’t the landlord rent the same now empty property to the evicted tenants?

      2. If the municipality is free to compel their eviction from one location, it is free to compel their eviction from all locations using the same facts and same claim.

        There is an enormous difference between a landlord choosing to evict someone for committing a crime, and the municiplaity requiring it.
        The former is removing an unwanted tenant from their property.
        Others are completely free to rent to those evicted or not as they choose.
        When government does this it is close to forced homelessness,
        or the equivalent of being evicted from the municipality.

        This is also a clear violation of the contracts clause, but god forbid the constitution means what it says.

  3. There might also be a case under Article 1 Section 10 – either as a “Law impairing the Obligation of Contracts”, or even arguably Attainder working Corruption of Blood.

    1. I immediately went to Corruption of Blood. and then incorporated to the States under the 14th.

      1. Even if it was incorporated (how?), isn’t that just for treason?

  4. Does even the Chinese government do this?

    1. Yes. See: Olympics, Beijing.

  5. I could understand this if it were the government as landlord, imposing a condition of tenancy but to apply this to private landlords with potentially very different tolerances seems very odd.

    1. Agreed. If a landlord wants to do this, he should have the right to, provided that it’s in the lease. The government has no right to mandate it, any more than it has the right to mandate that a baker make a cake for a homosexual “marriage.”

      1. Dude…you’re slipping. An entire post without a mention of butt-sex.

        But kudos for thrusting [heh] gay marriage into this topic.

        1. The darn leftists haven’t yet gotten around to insisting that bakers have butt-sex with people at gay marriages.

          For some reason.

          1. They’re even willing to meet conservatives half-way and allow people to wash their hands in between the compulsory ball-waxing and the compulsory cake-baking!

          2. Interesting aside. If you’re an “escort” in Nevada at a wedding event, can you turn down a client based on their “gender”? Or is that discrimination?

            1. Are you an escort in Nevada, or just have interest in their business practices?

              1. I would assume he (no judgments on my pronoun usage) got invited to a wedding in NV and is figuring out the lay of the land, so to speak.

      2. Why don’t you go back to the East Village and make up with the guys who spurned you?

        It would be much healthier for all of us.

  6. Isn’t collective punishment a war crime?

    Don’t the anti-semites use this to condemn Israel for bulldozing orchards and houses of Palestinains who have launched rockets at Israel?

    1. It’s of the format “If you want to stop a behavior in society, don’t just punish the guilty, punish those who allow it to happen.”

      War crime aside, I don’t see how it’s legal to punish those who had nothing to do with it, or at least not convicted of anything.

      1. Then again, “It’s a civil punishment so no rights apply!” is the fashion of the day in the US, unfortunately.

  7. In a case where the landlord would prefer the tenants to stay (minus the one presumably moving on to state-funded housing), couldn’t they solve the problem by evicting the family and then immediately re-leasing the property back to the same tenants?

    1. Probably not. According to the Granite City municipal code, landlords have to renew their licenses every year. It looks like one of the requirements is documenting that you complied with the crime free housing act. I’m willing to bet that when the City is reviewing the applications, they won’t view re-leasing the property to the family you just evicted as satisfying the requirements. So unless a landlord is willing to go to court and risk his business, it seems unlikely to occur.

      1. No, if you comply with the law, and evict the non-criminals before leasing (again) to non-criminals, and they try to deny your license for not complying with the law… I’d guess you could just continue on before, only this time with the price of the license in your pocket instead of theirs, and if they try to take any enforcement action because you complied with the law, you’d have a net profit after your malicious prosecution lawsuit.

        1. I certainly hope you don’t provide anyone with legal advice.

          1. Can’t imagine why not.

            1. Doesn’t everybody go to their local IT professional when they need legal advice?

      2. Presumably you can lease it back to a different family member under an alias. It’s not like the city is going to look super closely to connect up the name on the lease with a real identity.

        1. Granite City has a population of around 30,000 it wouldn’t be that hard to keep track of a few landlords.

  8. I would use Attainder Working Corruption of Blood. It’s directly on point. Why use a vague constitutional provision to make yet another policy argument when there is specific text of the constitution that is directly on point?

    1. It’s not directly on point. First, this isn’t Corruption of Blood because no one is preventing the family from inheriting from their family friend who committed the crime. Second, the family friend was accused of burglary, not treason.

  9. Arguing that terminating a lease is “blatantly unconstitutional” because it represents a 5th amendment taking is a little ridiculous.

    Arguing that an eviction process (through a local court) is a “deprivation of property rights without due process of law” is more than a little ridiculous.

    Courts have upheld limitations on where certain classes of criminals may live. A convicted child molester, for example, may be prohibited from living next to a school. That may have the effect of prohibiting his family from living next to a school. This is not an unconstitutional taking or a deprivation of due process.

    There may be some elements of this law that renders it unconstitutional. I’d also agree that this is a bad law. But I’m not convinced that it is “blatantly unconstitutional.”

    1. “Courts have upheld limitations on where certain classes of criminals may live.”

      Since the class of criminals we’re discussing here is NON-criminals, I think you’re on the wrong side of the “calling things ridiculous” finger pointing this time around.

    2. The only person receiving due process is the criminal. Nobody else gets it: it’s an automatic punishment.

      1. Eviction proceedings are not (at least in the legal fiction) punishment. They are a determination of whether the person should be punished or not.

        Based on my reading of this case, the issue is that the family allows a known criminal to reside in the house. Therefore, the family must be evicted. Presumably the family could prevent this by not allowing the criminal to reside there (although that’s not clear from the post)

        This is not a case (as others have made upthread) where an individual not residing with the family has committed a crime and the family is being evicted.

        1. “Eviction proceedings are not (at least in the legal fiction) punishment. They are a determination of whether the person should be punished or not.”

          Eviction proceedings aren’t about punishment at all. They’re about who has a superior right to ongoing possession of the premises.

        2. This is not a case (as others have made upthread) where an individual not residing with the family has committed a crime and the family is being evicted.

          Actuaaly, it is; he was a guest, not a resident. Also…

          Based on my reading of this case, the issue is that the family allows a known criminal to reside in the house.

          Nope. Nothing about the statute requires that the family or landlord know the person is a criminal. (And in this case, they did not.)

  10. This looks like, to borrow a phrase, “an uncommonly silly law”; however, Constitutionally, it’s not far from civil forfeiture.

  11. But the difference is the historical roots.

    Civil Asset Forfeiture is rooted in lost property or contraband, specifically in maritime law. What do you do when you find an unlisted ship full of contraband (munitions during wartime, for example)? You don’t have either as ship owner or the captain to prosecute, and often don’t know who they are; while in the instances where you do know their identity they’re in another country.

    So you create the civics asset forfeiture process, where a property that is derelict and otherwise forfeitable after prosecution is itself prosecuted, with owner, bailees, and others with a property interest free to intervene (and make themselves available for prosecution) to secure their own interests.

    Under this paradigm, asset forfeiture makes sense, even in the case of drug runners. If a drug runner is pulled over near the border and flees such that you don’t know his identity, escaping to Canada, and the vehicle is not registered such that you can find the owner, what is the state to do? It should have a civil asset forfeiture process to claim title to the derelict vehicle.

    The problem, of course is that it’s not used in the historical context of derelict property (where by definition the owner is unavailable), but rather seized from the owners hands themselves. If we returned to the old rules (where something had to actually be derelict before it could be seized, and even jetsam had to be returned to the owner) I think few would object to it.

    Lots of nuances in maritime law omitted. If you caught the and think it important, add them in.

  12. Two questions.

    1. If this is a breach of the Takings Clause – which on its face it looks like – does not a similar analysis apply just as well to an ordinance requiring landlords to boot out a tenant who has himself been convicted of something ?

    2. But the Court made clear that it did so largely because “[t]he government is not attempting to criminally punish or civilly regulate respondents as members of the general populace. It is instead acting as a landlord of property that it owns, invoking a clause in a lease to which respondents have agreed and which Congress has expressly required.”

    This implies that Granite City may have gone about its policy the wrong way. If instead it had simply required landlords to include a clause in their leases about booting out whole families if anyone was convicted of something, then the rule would have been converted into a clause of the private contract – albeit one that the city had insisted upon. But cities and States and Congresses never tire of this type of insisting and if it was unconstitutional, politicians could barely occupy themselves at the legislative treadmill for more than a couple of weeks a year.

    Which then – obviously – raises the question. If the city could have imposed this rule constitutionally by requiring, by regulation, not that landlords boot out tenants in these circumstances, but that landlords only write leases which require tenants to depart if someone is convicted, does not Robertsian precedent require the courts to construe the ordinance as if that is what they had done ?

    1. The Supreme Court case involved public housing. The government was the landlord.

      1. I know. But the ratio of the decision – as I understand it from Somin’s summary – is not that it’s OK if the government is the landlord, but that it’s OK if it’s done pursuant to the terms of a lease.

        Thus it’s not who the landlord is, but what the lease says.

        And my point is that the government can, if it so chooses and within some limits, regulate what terms must be inserted, or are deemed to be inserted, into private contracts. Including leases. Whoever the landlord is.

        1. It wasn’t just that the government was the landlord. It wasn’t just that the term was in the lease. It was that the tenant voluntarily agreed to the term in the lease. (Whether a resident in public housing has meaningful alternatives to accepting the terms of the lease are left as a homework problem.)

          1. It wasn’t just that the term was in the lease. It was that the tenant voluntarily agreed to the term in the lease.

            I think this is quite a common feature of contracts.

            Nor, alas, will the argument that you were coerced into accepting a contractual term, because the government had required it to be included, get you very far in court. See for example Obamacare and minimum essential coverage.

            1. “I think this is quite a common feature of contracts”

              Yes. So if the court can resolve the matter as a contract, and not as a matter of constitutional law, guess what they’re going to do?

              But when the issue is NOT in the contract, they don’t have that out, and now the court has to actually work out if the government, as government, can enforce a term that isn’t in the contract.

            2. Since public housing is also subsidized by the government the tenant is in effect being paid to live in public housing. The tenant has an incentive to agree to the terms because they get the benefit of very low rent.

              1. Non-public housing is ALSO subsidized by the government, in various ways. Mortgage-interest-deduction being probably the biggest.

                1. A common misconception.

                  The other end of the transaction – the income to the lender – is taxed. Because the other end of the transaction is taxed, the mortgage tax deduction makes the whole transaction tax neutral. No net tax, no tax subsidy.

                  It may be that you think it would be better if the government net-net took a slice of the financially zero sum loan transaction, perhaps if you disapprove of too much credit, but that doesn’t make the tax neutrality of the current system into a “subsidy.”

                  1. Your framing on a transaction basis as opposed to an individual basis makes no sense.
                    For that matter, a monetary transaction being tax neutral is being subsidized relative to the norm of other transactions.

                  2. Every time I spend money, the money shows up as income for somebody. What does this have to do with whether or not I had to pay tax on it?

                2. I eternally disagree that the government letting you keep some of the money you yourself earned is “subsidizing” you. They are just declining to take it. Any expressed reason is irrelevant hot air.

                  By allowing that sophistry, you see here an example of downstream rationalizations that further extend government control.

                  1. Yeah, and taxation is theft.

                    As a policy decision, it’s a subsidy.

                  2. “I eternally disagree that the government letting you keep some of the money you yourself earned is “subsidizing” you.”

                    How does the fact that you’re wrong about it change things for anyone who isn’t you?

    2. “does not a similar analysis apply just as well to an ordinance requiring landlords to boot out a tenant who has himself been convicted of something ?”

      You can be deprived of rights (such as having property taken from you), if there is due process. If you got convicted, you got some process. But when the taking involves someone who not only wasn’t charged for, but isn’t even suspected of committing a crime, and there is no process at all of any kind…

      1. The idea here is that the landlord is the one being deprived of the right here — the lease is valuable to him. No process has been afforded to him in this context.

        1. This is the same government who considers kicking someone out of a college so they have to go to a lesser one, affecting lifetime earnings, and branding them a semi-official sex offender, to be so minor as to not count as punishment, and so as to not require due process either.

          Eviction ain’t no thing.

          1. “This is the same government who considers kicking someone out of a college so they have to go to a lesser one, affecting lifetime earnings”

            You don’t have a right to attend a school, nor to any future earnings. I would have made more money if I’d gone to Yale than if I’d gone to the law school I did go to. I was punished! For, um… hold on, I’ll think of something. Not wanting to go to Connecticut. Yeah, that’s the ticket.

    3. They’d have to do a bit more than merely require the terms be included in the lease. There would need to be enforcement mechanisms against the landlords, which would then run into a potential Takings Clause issue.

      1. Looking through the ordinance, they do go a bit further than merely requiring it as a term of the lease.

        1. I’m surprised anyone is willing to be a landlord in Granite City.

  13. How dies “Corruption of Blood” fit into the argument?

    1. It doesn’t. The only place corruption of blood get’s mentioned in the US constitution is in the clause on treason.

      1. That controls its use in treason. Does it imply it is a no no for everything else? Or is it fair game for everything else?

  14. Democrats. Feh.

  15. If they don’t like the ordinance, they can move out of Granite City.

    Oh wait …

    1. Could it be that these people were to “politically ignorant” to “vote with their feet”?

      1. Guess what kind of “foot voting” they may be tempted to engage in (which would of course be wrong):

        https://ebay.to/337HeMY

      2. I think that’s one of the goals of the ordinance.

        1. The obvious goal is to get the criminal(s) to leave the area. Not sure how evicting the non-criminal components of the household is on the same footing.

          1. Some suggest the families would be aware of the criminal behavior, so the law rides those gypsies out of town on a rail.

            Still, it seems like punishment without conviction, or even charges.

            1. Criminals fall into two categories… those who are easily detected, and those who are not. The kind who are easily detected tend to get caught around their first offense. The other kind is good at concealing their criminality, that’s why they don’t get caught. Either way, expecting the family to know seems… troubling.

  16. Assuming you are correct that the process the criminal receives is not sufficient for the family members… what does that mean for marital property states where the spouse of a criminal can lose property she has an interest in based only on the process given the criminal?

  17. Is there also an equal protection argument? This law only applies to people who are renting, so if a family who owns a house will not be forced to sell just because a family member or someone who lives there committed a crime elsewhere.

    1. There is indeed such an argument; it’s in the lawsuit.

  18. Isn’t this an unconstitutional taking from the landlord ?

    Eviction is costly. Except in rare occasions the landlord is going to lose atleast 1 months rent.

    The landlord did not do anything wrong.
    There is no basis for an uncompensated taking from the landlord.

  19. A feature of the complaint not mentioned in the post is that the plaintiffs aren’t actually tenants. Instead, they have a land contract, a sort of seller-financed mortgage or rent to own arrangement, which will result in their having full ownership if they maintain the payments in the contract. This means that evicting them does more than dissolve a tenancy. It also takes away an equity interest in the property.

    The equal protection argument argues that treating purchasers who use the land contract method differently from purchasers who use a morgtage is unconstitutionally irrational.

    I’d be inclined to think a rational basis could be found for such a distinction. But nonetheless, I think that the nature of their property interest tends to bolster both their takings and their due process claims.

    It could also potentially result in a ruling that applies only to the relatively smaller set of land contract purchasers and leaves the more usual general tenants for another case.

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