Hoopa Valley Housing Authority, Petitioner/Appellee, v. Marla & Bruce Hunsucker, Respondents/Appellants.

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

Hoopa Valley Housing Authority, Petitioner/Appellee,

Marla & Bruce Hunsucker, Respondents/Appellants.

NO. UD-13-003/A-13-003 (February 27, 2014)

Tenants of tribal housing facing eviction for their daughter’s drug-related criminal activity moved to have Housing Authority’s complaint for unlawful detainer dismissed, arguing that a criminal conviction is a condition precedent and trial court lacked jurisdiction over criminal proceedings. Trial court denied motion to dismiss and granted Housing Authority’s motion for summary judgment. Court of Appeals holds that an action for unlawful detainer is a civil, not criminal, matter; a criminal conviction is not a prerequisite to eviction for drug-related criminal activity; and preponderance of the evidence is the correct standard to use to determine whether drug-related criminal activity occurred in civil proceeding. Trial court order affirmed.

Before:	Lisa E. Brodoff, Chief Judge; Matthew L.M. Fletcher, Judge, Eric Nielsen, Judge.
Appearances:	Clifford Lyle Marshall, Sr., for Appellants; David B. Dehnert, for Appellee.

OPINION

Per curiam:

This matter comes before the Court of Appeals pursuant to the Notice of Appeal filed by Respondents/Appellants on October 28, 2013 seeking reversal of the order issued by the Hoopa Valley Tribal Court on October 7, 2013. In that order, the Tribal Court denied Respondents’ motion to dismiss the complaint and granted the Petitioner Housing Authority’s motion for summary judgment on its complaint for unlawful detainer.¹ On February 24, 2014, this Court issued a Minute Order affirming the trial court’s judgment and remanding the matter for enforcement of its orders and writ, and for further proceedings in regards to claims for damages and attorney fees. We now issue this Opinion in support of that Order.

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014) p. 27

Factual and Procedural History²

Respondents Marla and Bruce Hunsucker entered into a Mutual Help and Occupancy Agreement with the Hoopa Valley Housing Authority (HVHA) in 2002 for house number 109. In 2005, despite Marla being convicted of felony drug dealing and Bruce being convicted of misdemeanor drug dealing, the Hoopa Valley Tribal Court denied a complaint for unlawful detainer of house 109 because the Hunsuckers had not received proper notice that they could be evicted for drug-related activity on the premises. Thereafter, HVHA notified all tenants by publication and by distribution of a Criminal Activity Notice that any criminal activity, including drug-related criminal activity, on or off the premises, could result in eviction. In 2005, 2007, 2010, and 2012, Marla Hunsucker signed the then-current versions of this Criminal Activity Notice, and Bruce Hunsucker also signed the 2012 notice.

On January 28, 2013, the Respondents’ then-23 year old daughter Andrea Hunsucker was arrested in house 109 for possession of 18 grams of heroin with intent to sell. (At a hearing on HVHA’s motion for summary judgment in the current case, the Respondents acknowledged that they themselves had stopped residing in unit 109 and had relocated so that one of their sons could attend a more desirable high school, and allowed Andrea to reside in the unit.) Police reports admitted into evidence under the business document exception to the hearsay rule establish that the Hoopa Valley Police Department had been receiving reports of drug-related activity at house 109 for over a year; house 109 had been under surveillance for two weeks prior to Andrea’s arrest; during the two weeks of surveillance, significant activity presumed to be drug-related was observed by the officer conducting the surveillance; and at the time of Andrea’s arrest, a substance that was later confirmed to be heroin was found on Andrea’s person, as well as in a car belonging to Andrea’s boyfriend parked at the residence. Andrea also had fresh needle marks on her arms and $6,470 in cash in her pockets at the time of the arrest.

The Hoopa Valley Tribal Court does not exercise criminal jurisdiction. On April 17, 2013, the State of California filed a felony complaint in the Superior Court of California, County of Humboldt, naming Andrea Hunsucker, her boyfriend, and a third accomplice on charges of (1) possession for sale of heroin; (2) possession of heroin; (3) allowing house no. 109 to be used for preparing or storing heroin for the sale of heroin; (4) child abuse committed by Andrea Hunsucker and her boyfriend (apparently based on numerous packets of heroin and used hypodermic needles being easily accessible to Andrea’s four-year old twins while the adult residents of the house were observed by police to be “nodding out” on heroin); (5) Andrea destroying evidence; and (6) Andrea’s boyfriend resisting, obstructing and delaying a peace officer.

On April 22, 2013, HVHA filed a complaint for unlawful detainer in the Hoopa Valley Tribal Court alleging that Andrea’s drug-related criminal activity constituted a serious nuisance

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014) p. 28

for which Respondents were responsible and which constituted grounds for eviction. On August 6, 2013, HVHA filed a motion for summary judgment in the Tribal Court unlawful detainer action. Respondents never filed an answer or response to the motion for summary judgment, but instead filed a motion to dismiss the complaint on August 13, 2013 on the grounds that “the determination of criminal activity for purposes of eviction is beyond the scope of the Tribal Court’s jurisdiction.” On October 7, 2013, prior to any verdict or judgment in the state criminal proceeding, the Tribal Court issued an order denying Respondents’ motion to dismiss and granting HVHA’s motion for summary judgment. Because that order did not include an express ruling that Respondents were in unlawful detainer of the premises, on October 16, 2013, the Tribal Court issued an order amending its October 7 order to include judgment for unlawful detainer and damages and attorney fees. Appellants then filed this appeal.

ISSUES ON APPEAL

Using language in their notice of appeal and opening brief virtually identical to that in the motion to dismiss they filed in the trial court, Appellants ask this Court to “dismiss the action on the grounds that the determination of criminal activity for the purposes of eviction exceeds the Tribal Court’s limited jurisdiction established by the March 1, 1983 Referendum” that established the Hoopa Valley Tribal Court. In their reply brief, complaining that the Housing Authority’s response brief misrepresents the issues on appeal, Appellants restate the issues on appeal as:

1. Whether the Hoopa Valley Tribe's Civil Court has jurisdiction to determine whether a crime, or "criminal activity" was committed without a criminal hearing affording the Appellant/Defendants the constitutional protections guaranteed by the United States and the Hoopa Valley Tribes [sic] Constitution, including but not limited to a jury trial and all defenses provided in a criminal proceeding; and

2. Whether the civil evidentiary standard of "preponderance of evidence" rather than the criminal evidentiary standard of "beyond reasonable doubt" was the appropriate standard relied on to determine whether a crime, or criminal activity occurred.

STANDARD OF REVIEW AND WAIVER OF ORAL ARGUMENT

The standards by which this Court reviews decisions of the Hoopa Valley Tribal Court are set forth in Title 2, Chapter 6, Section 18 of the Hoopa Valley Tribal Code (HVTC). We review questions of law de novo, “with no deference granted to the tribal court decision.” HVTC 2.6.18(a). “Where the lower court exercised its grant of discretion on an issue, the appellate court may only reverse the lower court if it finds the decision was arbitrary, capricious, or not in accordance with the law, or otherwise an abuse of discretion.” HVTC 2.6.18(c). See also Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 2 (Hoopa Valley Tribal Ct. App. 2007) (questions of law are reviewed de novo, questions of fact are reviewed for clear error, and matters of discretion are reviewed for abuse of discretion).

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014) p. 29

Oral argument may be waived if the “panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary” because “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” HVTC 2.6.20(a)(2). Having examined the briefs and the record, we unanimously agree that oral argument is unnecessary in this case.

DISCUSSION

Appellants either fundamentally misapprehend the nature of these proceedings, or they purposefully mischaracterize them in an effort to avoid the result that the law commands. This is a civil proceeding for unlawful detainer properly brought under the Tribe’s Foreclosure and Eviction Ordinance, HVTC Title 36 (hereinafter “eviction ordinance”). This is not a criminal proceeding, and the limitation on jurisdiction imposed by the March 1, 1983 Referendum establishing the Tribal Court is simply irrelevant.³

The eviction ordinance establishes that “serious nuisance” constitutes grounds for eviction.⁴ HVTC 36.11.02(2)(5). “Serious nuisance” is defined to include “any drug-related criminal activity on the premises, engaged in by a tenant, his guest, or any other person under the tenant’s control.” HVTC 36.5.1(v). “Guest” is defined as “[a]ny person, other than the tenant, in or around a dwelling unit with the permission and consent of the tenant.” HVTC 36.5.1(i). “Drug-related criminal activity is defined as “[t]he illegal manufacture, sale, distribution, use, or possession with intent to manufacture, distribute, sell, or use, of a controlled substance as defined in section 102 of the Controlled Substance Act (21 U.S.C. § 802).” HVTC 36.5.1(e).⁵

In Article VIII of their Mutual Help and Occupancy Agreement (MHOA) with HVHA governing “Maintenance, Utilities and Use of Home,” Appellants acknowledge that HVHA

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014) p. 30

“shall establish and adopt, and use its best efforts to obtain compliance with, written policies to assure full performance of the respective maintenance responsibilities of the [HVHA] and homebuyers.” MHOA § 8.1. In Article XII, § 12.1(a), of the MHOA, Appellants acknowledge and agree that failure to comply with any of their obligations under the MHOA may constitute grounds for termination of the MHOA and eviction under the applicable landlord-tenant law, which in this case is HVTC Title 36.

The HVHA Mutual Help Occupancy Policy⁶ applicable to Appellants’ MHOA (hereinafter “Occupancy Policy”), § 2.1, provides a definition of “drug-related criminal activity” that is identical to the definition set forth at HVTC 36.5.1(e). Section 6.15 of the Occupancy Policy states

Section 6.6 of the Occupancy Policy also prohibits “unlawful activities or activities which could cause a disturbance to neighbors and the surrounding community.” Section 6.12 of the Occupancy Policy provides that “[t]he homebuyer (head or spouse) is responsible for all actions of the residents, guests, and children of the home and may be held accountable for their actions.”

The Criminal Activity Notices provided to, and signed by, the Appellants in 2005, 2007, 2010, and 2012 provided clear and abundant notice to Appellants of HVHA’s policies in these regards. Each of the notices included the identical heading, in bold, all-capitals type, that “THE HOUSING AUTHORITY MAY EVICT YOU FOR ANY CRIMINAL ACTIVITY (INCLUDING DRUG-RELATED CRIMINAL ACTIVITY) THAT YOU OR SOMEONE UNDER YOUR CONTROL ENGAGES IN.” The notices included detailed references to the relevant federal and tribal laws and HVHA policies, as well as the definition of “drug-related criminal activity,” and a description of the U.S. Supreme Court decision in HUD v. Rucker, discussed below. The notice concluded with the statement

The undersigned acknowledges that the above information was read and it is understood that the Housing Authority may evict the undersigned for any criminal activity (including drug-related criminal activity) engaged in by the undersigned or someone under the control of the undersigned.

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014) p. 31

There is no question that Andrea Hunsucker is a child of Appellants Marla and Bruce Hunsucker for purposes of Occupancy Policy § 6.12, as well as being a guest of the Appellants under Occupancy Policy §6.12 and HVTC 36.5.1(i). As she was residing in house 109 with the permission of Appellants, and Appellants retained the right to exclude her from the residence, she was under their control for purposes of HVTC 36.5.1(v) and the Criminal Activity Notices that Appellants signed. There is also no genuine dispute that Andrea Hunsucker was in possession of heroin while in the residence, or that heroin is a controlled substance under 21 U.S.C. § 802.⁸

HVTC 2.1.01 provides that “Federal or State rules and Federal or State case law may be cited to as persuasive argument for purposes of analysis in areas where Federal or State rules are analogous to Tribal rules and Tribal case law.” A pair of federal court decisions interpreting parallel provisions of federal low-income housing law directly support the trial court’s ruling here. In a unanimous decision, the United States Supreme Court has held that under 42 U.S.C. § 1437, public housing authorities are authorized to evict tenants from public housing if the tenant, a household member, or a guest engages in drug-related criminal activity. HUD v. Rucker, 535 U.S. 125, 130 (2002). The HUD v. Rucker Court held that “any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about.” Id. at 131 (emphasis in opinion).

Prior to the Supreme Court’s decision in HUD v. Rucker, the United States Court of Appeals for the Fourth Circuit had the occasion to consider whether termination of housing benefits under 42 U.S.C. § 1437 for “drug-related criminal activity” required a criminal conviction. Relying on federal regulations implementing the statute, the Court held conviction is not required for the termination of housing benefits. "A termination based on participation in drug-related criminal activity must be based on a "preponderance of the evidence indicating that a Family member has engaged in such activity, regardless of whether the Family member has been arrested or convicted." Clark v. Alexander, 85 F.3d 146, 148 (4th Cir. 1996). The Fourth Circuit Court held that all that is required to terminate housing benefits for “drug-related criminal activity” is an informal, adversarial hearing before a neutral hearing officer, decided using a preponderance of the evidence standard. Id. at 148-149.⁹

12 NICS App. 26, HOOPA VALLEY HOUSING AUTH. v. HUNSUCKER (February 2014) p. 32

“[I]nterpretive rules adopted by local housing authorities should be afforded deference by . . . courts only to the extent the agency's rules are not contrary to the statute or regulation.” Clark v. Alexander, supra at 148, citing Ritter v. Cecil County Office of Hous. & Community Dev., 33 F.3d 323, 328 (4th Cir. 1994) (internal quotation marks omitted). Here, HVHA’s policies and Criminal Activity Notice are not only not contrary to the relevant federal and Tribal statutes, they track them nearly word for word. The trial court committed no error in its interpretation and application of the relevant policies, regulations, and statutory provisions.

CONCLUSION

The answer to both of the issues raised on appeal is “yes” – the Tribal Court does have jurisdiction in a civil proceeding for unlawful detainer to determine whether drug-related criminal activity occurred, and “preponderance of the evidence” is the correct evidentiary standard. We therefore hold that a criminal conviction is not a prerequisite to a civil action for eviction for drug-related criminal activity under HTVC Title 36. The October 7, 2013 and October 16, 2013 rulings of the Hoopa Valley Tribal Court in this matter are affirmed in all respects.

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

The Tribal Court issued an order on October 16, 2013 amending its October 7 order to include a writ of possession and a judgment for damages and attorney fees to be determined upon proof after the Respondents have vacated the premises.

The record on appeal shall be made up of all papers and exhibits filed in a case, the register of action, if any, plus the audio recordings and/or transcript made of all court hearings in the case. HVTC 2.6.06(a). The following facts are drawn from attachments to the complaint, police reports admitted into evidence, Plaintiff’s motion for summary judgment and supporting documents attached thereto, and the trial court’s order of October 7, 2013.

The Referendum does not expressly, completely or permanently prohibit the Hoopa Valley Tribal Court from exercising jurisdiction over criminal matters – it simply limits the Court’s jurisdiction to the “protection of Tribal rights, assets and resources of the reservation over which the State [of California] is not exercising jurisdiction under Public Law 83-280.”

The ordinance establishes that additional grounds for eviction include simple nuisance, as well as the violation of any reasonable rules and regulations promulgated by the landlord. HVTC 36.11.02(a)(4) and (a)(3), respectively.

The Title 36 definition of “drug-related criminal activity” is identical to that found in the Native American Housing Assistance and Self-Determination Act (NAHASDA), 25 U.S.C. § 4101 et seq., at 25 U.S.C. §4103(3). As noted by both HVHA and the Tribal Court, because the Tribe’s Mutual Help housing program is administered at least in part with federal funds allocated under NAHASDA, HVHA is required to comply with federal regulations associated with those funds, including 25 U.S.C. § 4137, which states in relevant part:

Except to the extent otherwise provided by or inconsistent with tribal law, in renting dwelling units in affordable housing assisted with grant amounts provided under this chapter, the owner or manager of the housing shall utilize leases that

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(6) provide that the owner or manager may terminate the tenancy of a resident for any activity, engaged in by the resident, any member of the household of the resident, or any guest or other person under the control of the resident, that

* * *

Although only page 1 of the copy of the Occupancy Policy admitted into evidence is marked “Approved – 01/23/08” and the remaining pages are marked “Draft - 1/13/2010,” the Declaration of HVHA Resident Services Specialist Kristen Raymond, filed on August 6, 2013, states this is a true and correct copy of the Occupancy Policy. Respondents did not object to the authenticity or contest the accuracy of this copy of the Occupancy Policy, so we accept it as the approved version. However, we encourage HVHA to produce unambiguously current and approved versions of all of its policies prior to initiating any future proceedings.

This appeal does not require us to address the question of whether a mere arrest, without any additional evidence of criminal activity, constitutes a valid basis for termination.

While Appellants make broad assertions in the text of their notice of appeal and briefs that the evidence submitted by HVHA and admitted by the Tribal Court is hearsay and the result of an illegal search and seizure, they do not formally assign error to the trial court’s evidentiary rulings. Indeed, HVHA included the question of whether the trial judge’s evidentiary rulings constituted an abuse of discretion in the “Statement of Issues” in its response brief. It was this “Statement of the Issues” that Appellants then described in their reply brief as a “complete misrepresentation of the issues appealed by the Appellant/Defendants.” We see no abuse or error in the trial court’s evidentiary rulings, nor merit in Appellants’ assertions, and in any event, deem all evidentiary challenges waived.

Appellants rely heavily on a Humboldt County Superior Court ruling, based on express requirements of California law, that the cash seized at the time of Andrea Hunsucker’s arrest could not be forfeited to the state prior to a criminal conviction. That the State of California may require a criminal conviction prior to the civil forfeiture of the proceeds of a criminal transaction has no bearing whatsoever on whether a Hoopa Valley Tribal landlord may evict a tenant for drug-related criminal activity under HVTC Title 36.