FIRST DIVISION September 20, 2010
No. 1-09-1717
KEITH LANDERS, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Cook County. ) v. ) ) CHICAGO HOUSING AUTHORITY, a Municipal ) Corporation, ) The Honorable ) William O. Maki, Respondent-Appellant. ) Judge Presiding.
JUSTICE LAMPKIN delivered the opinion of the court:
Respondent, Chicago Housing Authority (CHA), a municipal
corporation, appeals the circuit court’s judgment in favor of
petitioner, Keith Landers, on his petition for certiorari,
thereby reversing the CHA’s denial of petitioner’s application
for public housing. The CHA contends the circuit court erred in
its decision. Based on the following, we affirm.
FACTS
In February 1995, petitioner filed an application with the
CHA for public housing. Petitioner was placed on a wait list.
In November 2008, petitioner was notified that he had reached the
top of the wait list and was eligible for housing assuming he
passed various background checks. The CHA used the private firm
Screening Reports, Inc., to conduct a criminal background check.
The criminal background report revealed that petitioner had been 1-09-1717
arrested 34 times for various felony and misdemeanor charges. As
a result, the CHA rejected petitioner’s application for housing,
citing a pattern of arrest and/or conviction for certain criminal
activities. In response, petitioner requested that the CHA hold
an informal hearing pursuant to the CHA’s administrative hearing
process so that he could provide documentation to dispute the
accuracy of the criminal background report. See 24 C.F.R.
§§960.204(c), 906.208(a)(2008); 42 U.S.C. §1437d(q)(2)(2006).
A hearing was held on February 25, 2009. According to the
parties’ stipulated statement of facts,1 petitioner produced a
fingerprint-based criminal history report from the Chicago police
department (CPD) and a revised report from Screening Reports,
Inc. The revised report from Screening Reports, Inc., showed
that petitioner had been arrested for four felony offenses and
nine misdemeanor offenses, as well as for four civil ordinance
violations. The offenses included misdemeanor battery,
misdemeanor assault, misdemeanor theft, criminal trespass, being
a fugitive from justice, possession of a controlled substance,
possession of drug paraphernalia, and drinking on a public way.
All of the charges, however, had been dismissed except for one
civil offense for drinking on a public way. The CPD report
1 The stipulation was entered pursuant to section 3-108 of
the Administrative Review Law. 735 ILCS 5/3-108 (West 2008).
-2- 1-09-1717
showed that petitioner had no prior convictions.
According to the parties’ stipulation, petitioner testified
at the mitigation hearing that the original criminal background
report was inaccurate because it contained a high volume of
arrests attributable to his twin brother. When asked by CHA
representatives whether he committed the criminal offenses listed
in the revised report, petitioner maintained that he did not
commit the acts for which he was arrested. Petitioner testified
that the police frequently questioned and arrested him merely
because he was homeless and often gathered him in with other
homeless individuals being questioned and arrested by the police.
Petitioner testified that nearly all of the charges listed in his
revised background report were dismissed at the initial court
hearing because they lacked merit.
On March 2, 2009, the CHA sent petitioner a letter of
denial. The letter stated that “[b]ased on the information and
documents that [petitioner] provided, and the additional
research, the CHA has determined and can document a pattern of
arrest and/or conviction for certain criminal activities.” The
letter further informed petitioner that his name had been removed
from the CHA’s wait list.
On March 23, 2009, petitioner filed a petition for
certiorari in the circuit court requesting reversal of the CHA’s
-3- 1-09-1717
decision.2 In response, the CHA filed a section 2-619 (735 ILCS
5/2-619 (West 2008)) motion to dismiss, arguing that petitioner’s
arrest record provided sufficient support for the CHA’s decision.
On June 5, 2009, the circuit court conducted a hearing. At
the outset, the circuit court denied the CHA’s motion to dismiss
and proceeded to consider the petition for certiorari. The
circuit court ultimately granted certiorari, concluding that,
although the CHA was entitled to review the arrest record of an
applicant, petitioner did not pose a threat to the other housing
residents where his arrests were dismissed and were largely based
on his homelessness. The circuit court granted the CHA’s motion
to stay its June 5, 2009, order. The CHA appeals the circuit
court’s June 5, 2009, order.3
2 Pursuant to the Intergovernmental Cooperation Act (5 ILCS
220/1 et seq. (West 2008)), CHA tenant grievances are heard and
adjudicated by the department of administrative hearings for the
city of Chicago. 3 This court granted leave to file a brief amicus curiae in
support of petitioner pursuant to Supreme Court Rule 345 (210
Ill. 2d R. 345) to the Edwin F. Mandel Legal Aid Clinic of the
University of Chicago Law School, Uptown Peoples’ Law Center,
Chicago Area Fair Housing Alliance, Chicago Coalition for the
Homeless, Legal Action Center, National Law Center on
-4- 1-09-1717
DECISION
The CHA operates under the Illinois Housing Authorities Act
(310 ILCS 10/1 et seq. (West 2008)). The Illinois Housing
Authorities Act did not adopt the Administrative Review Law (735
ILCS 5/3-101 et seq. (West 2008)); therefore, the appropriate
vehicle for review is a common law writ of certiorari, as was
done in this case. Outcom, Inc. v. Illinois Department of
Transportation, 233 Ill. 2d 324, 333, 909 N.E.2d 806 (2009). We,
however, treat this appeal as we would any other appeal for
administrative review. Outcom, Inc., 233 Ill. 2d at 337. “ ‘In
administrative cases, we review the decision of the
administrative agency, not the determination of the circuit
court.’ ” Outcom, Inc., 233 Ill. 2d at 337, quoting Wade v. City
of North Chicago Police Pension Board, 226 Ill. 2d 485, 504, 877
N.E.2d 1101 (2007).
At issue is whether the CHA had the authority to reject
petitioner’s application for housing based on his arrest record.
The CHA contends its decision was accurate where petitioner’s
arrests in the preceding three years demonstrated that he was a
risk to the health, safety, and welfare of other tenants.
Petitioner responds that the CHA’s decision rejecting his
Homelessness and Poverty, and the Sargent Shriver National Center
on Poverty Law.
-5- 1-09-1717
application was contrary to the governing federal statutes and
regulations that permit denial of an application only where the
applicant has engaged in past criminal activity. Petitioner
attests that mere arrests such as his do not constitute criminal
activity.
The issue before us involves a mixed question of fact and
law. “[A] mixed question is one ‘in which the historical facts
are admitted or established, the rule of law is undisputed, and
the issue is whether the facts satisfy the statutory standard, or
*** whether the rule of law as applied to the established facts
is or is not violated.’ ” AFM Messenger Service, Inc. v.
Department of Employment Security, 198 Ill. 2d 380, 392, 763
N.E.2d 272 (2001), quoting Pullman-Standard v. Swint, 456 U.S.
273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790
n.19 (1982). As a result, we review the CHA’s denial of
petitioner’s application under the clearly erroneous standard.
Outcom, Inc., 233 Ill. 2d at 337. An agency’s decision is
clearly erroneous only where, after reviewing the entire record,
the reviewing court is “ ‘left with the definite and firm
conviction that a mistake has been committed.’ ” Outcom, Inc.,
233 Ill. 2d at 337, quoting AFM Messenger Service, Inc. v.
Department of Employment Security, 198 Ill. 2d 380, 395, 763
N.E.2d 272 (2001).
-6- 1-09-1717
The CHA, as a federally-financed housing authority and
pursuant to the United States Housing Act of 1937 (Housing Act)
(42 U.S.C. §1437 et seq. (2006)), promulgated rules and
regulations regarding selection and eligibility for admission to
public housing within its Admissions and Continued Occupancy
Policy (ACOP).4 The majority of the ACOP is a compilation of the
regulations of the Department of Housing and Urban Development
(HUD). See 24 C.F.R. §5.100 et seq. (2008); 24 C.F.R. §960.101
et seq. (2008).
Relevant to this appeal, the ACOP provides that “[a]ll
applicants will be screened in accordance with HUD regulations
and sound management practices. Screening will include a
criminal background, credit, and residential history check.”
FY2007 ACOP §II.F. During the screening process, applicants are
required “to demonstrate their ability to comply with the
essential obligations of tenancy” which includes “[t]o not engage
in criminal activity that threatens the health, safety, or right
to peaceful enjoyment of the premises by other residents, staff,
or people in the immediate vicinity.” FY2007 ACOP §II.F(1)(h),
citing 24 C.F.R. §960.203 (2006).
4 The ACOP applicable to this appeal, and the version
appearing in the record on appeal, is the amended 2007 ACOP.
-7- 1-09-1717
According to the screening criteria, the CHA will reject an
application where the CHA “can document via police arrest and/or
conviction documentation” that “[a]n applicant *** has a criminal
history in the past three years that involves crimes of violence
to persons or property as documented by police arrest and/or
conviction documentation.” FY2007 ACOP §II.G.14(d), citing 24
C.F.R. §906.203(c)(3) (2006) (“[a] history of criminal activity
involving crimes of physical violence to persons or property or
other criminal acts which would adversely affect the health,
safety or welfare of other tenants”). Crimes of violence are
described as including, but not limited to:
“homicide or murder; destruction of property or
vandalism; burglary; armed robbery; theft; trafficking;
manufacture, use, or possession of an illegal drug or
controlled substance; threats or harassment; assault
with a deadly weapon; domestic violence; sexual
violence, dating violence, or stalking; weapons
offenses; criminal sexual assault; home invasion;
stalking; kidnapping; terrorism; and manufacture,
possession, transporting or receiving explosives.”
FY2007 ACOP §II.G.14(d).
However, this general rule for rejecting applicants is limited
when based on an arrest report. The ACOP expressly provides that
“[i]f the CHA rejects an applicant based upon a police arrest
-8- 1-09-1717
report pending case information, the applicant’s name will remain
on the wait list until documentation is presented showing the
outcome of the case.” FY2007 ACOP §II.G.14(f).
In instances where the screening process reveals negative
information, an applicant is provided with a chance to present
verifiable mitigating information. FY2007 ACOP §II.H.1; see 24
C.F.R. §960.204(c) (2006). The CHA considers “the time, nature,
and extent of the applicant’s conduct and any factors that might
indicate a reasonable probability of favorable future conduct”
(FY2007 ACOP §II.H.1), as well as whether the applicant can
provide documentation of rehabilitation (FY2007 ACOP §II.H.2.).
When an applicant is deemed ineligible for admission, an informal
hearing may be requested. 24 C.F.R. §960.208(a) (2006).
After reviewing the applicable ACOP provisions, we conclude
that convictions and verifiable arrests for violent crimes,
including but not limited to those listed and drug-related
criminal activity or a pattern of illegal drug use, constitute
the “history of criminal activity” that the CHA finds prohibitive
in its screening process. See FY2007 ACOP §II.G.14(d); 24 C.F.R.
§§960.203, 960.204 (2006).
Here, petitioner’s original background check revealed
negative information. The CHA complied with the ACOP by
satisfying petitioner’s request for an informal mitigation
hearing. At that hearing, petitioner produced an accurate arrest
-9- 1-09-1717
report, which revealed that, within the relevant three-year time
period, he had two felony arrests, one of which was for
possession of an unknown quantity of a controlled substance and
the other was for being a fugitive from justice, and seven minor
misdemeanor arrests, including battery, assault, criminal
trespass, and possession of drug paraphernalia. Our review of
the offenses purely based on title, as we have no other facts to
review, demonstrates that none of these arrests seemingly rise to
the level of the requisite violent crimes or drug-related
criminal activity necessary to constitute a history of criminal
More importantly, however, section II.G.14(d) of the ACOP
limits the CHA’s authority to deny an application based upon an
arrest, such that “the applicant’s name will remain on the wait
list until documentation is presented showing the outcome of the
case.” FY2007 ACOP §II.G.14(f). Petitioner presented the only
documentation in this case in the form of a corrected criminal
background report and a CPD criminal history report. These
reports showed that all of petitioner’s prior arrests, not only
those in the relevant three-year time period, had been dismissed,
and petitioner had never been convicted of a crime. In addition,
petitioner testified at the informal mitigation hearing that he
did not commit any of the acts for which he was arrested; rather,
-10- 1-09-1717
petitioner said that he was arrested merely as a result of the
circumstances of being a homeless man. These facts were
unrebutted by the CHA. In fact, the CHA did not present any
evidence to dispute petitioner’s documentation or testimony.
Moreover, petitioner’s criminal background report was bare
bones, in that it merely contained defendant’s name, the charged
offenses, and the dates of the dispositions. There were no
police reports or arrest reports to provide any context for the
arrests. As a result, the only facts upon which the denial could
have been based were those presented by petitioner. The outcome
of the arrests, as stated in section II.G.14(f) of the ACOP, was
the dispositions. FY2007 ACOP §II.G.14(f). The disposition of
each arrest was a dismissal. Therefore, according to section
II.G.14(f) of the ACOP, petitioner’s arrests could not be a basis
for the rejection of his application. The information provided
by petitioner and the lack of information added by the CHA should
have been considered at the informal mitigation hearing to inform
“the time, nature, and extent of the applicant’s conduct” (FY2007
ACOP §II.H.1), such that there was no verifiable criminal conduct
to support the rejection of petitioner’s application. Instead,
petitioner’s name should have remained on the wait list if his
housing unit was no longer available.
-11- 1-09-1717
The CHA cites Perry v. City of Milwaukee Housing Authority,
No. 06-C-0101 (E.D. Wis. April 18, 2007), to support its
contention that evidence of a conviction is not required to
reject an applicant. We agree that evidence of conviction is not
a prerequisite for denying an application for public housing;
however, we find that Perry does not support the CHA’s denial of
petitioner’s application in this case.
In Perry, the United States District Court for the Eastern
District of Wisconsin reviewed the City of Milwaukee Housing
Authority’s (CMHA) denial of benefits to an applicant pursuant to
section 8 of the Housing Act (42 U.S.C. §1437f (2006)) and 24
C.F.R. §982.553 (2006), which grants a public housing authority
(PHA) the authority to prohibit admission where the applicant has
engaged in “other criminal activity which may threaten the
health, safety, or right of peaceful enjoyment of the premises.”
Perry, No. 06-C-0101. The CMHA’s denial was based on the
applicant’s two prior arrests for domestic battery. Perry, No.
06-C-0101.
Unlike the CHA in the instant case, the CMHA provided copies
of criminal complaints and arrest reports to support its
decision. Perry, No. 06-C-0101. Additionally, in contrast to
the instant case, during his informal hearing, the applicant did
not deny the accuracy of the supporting documentation; rather, he
argued that his arrests were irrelevant because he was never
-12- 1-09-1717
convicted of the offenses. Perry, No. 06-C-0101. The hearing
officer upheld the CMHA’s decision, noting that the facts in the
criminal complaints demonstrated that the offenses occurred, but
that the victim refused to press charges. Perry, No. 06-C-0101.
The Eastern District of Wisconsin agreed. Perry, No. 06-C-0101.
In stark contrast to our case, the CMHA’s decision was supported
with facts regarding the circumstances of the applicant’s
domestic battery arrests.
In another case, albeit for the termination of public
housing, the Missouri Court of Appeals considered whether the PHA
there, the Wellston Housing Authority (WHA), had the authority to
terminate a tenant’s lease based on a guest’s criminal record.
Wellston Housing Authority v. Murphy, 131 S.W.3d 378 (Mo. App.
2004). The reviewing court concluded that, pursuant to the
Housing Act (42 U.S.C. §1437(d)(l)(6) (2000)) and 24 C.F.R.
§966.4(l)(5)(iv), the WHA did not possess the authority to
terminate the tenant’s lease where the guest’s criminal record
did not provide evidence of criminal activity during the tenant’s
lease term. Wellston Housing Authority, 131 S.W.3d at 380-81.
Similar to 24 C.F.R. §906.204(c), the relevant provision in
Wellston Housing Authority, i.e., 24 C.F.R. §966.4(l)(5)(iv)
(2004), provides tenants with the opportunity to dispute the
accuracy of the criminal record at issue. As in our case, the
-13- 1-09-1717
criminal record there did not provide evidence of the relevant
criminal activity and, therefore, was ineffectual in supporting
the PHA’s decision.
Moreover, we are not persuaded by the CHA’s reliance on
Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994). In Talley, the CHA
denied a handicapped individual’s application for housing based
on a lengthy arrest and conviction record. Talley, 13 F.3d at
1032. The CHA supported its decision with the applicant’s arrest
and conviction record, which revealed convictions for theft,
rape, possession of burglary tools, possession of cocaine, and
unlawful use of a weapon, as well as outstanding warrants for
robbery and armed robbery. Talley, 13 F.3d at 1033 n.2.
Following an informal hearing during which the denial was
affirmed, the applicant filed suit against the CHA, alleging
discriminatory tenant selection practices in violation of the
Fair Housing Act (32 U.S.C. §3601 et seq. (1988)), section 504 of
the Vocational Rehabilitation Act (29 U.S.C. §794 (1994)), civil
rights statutes (42 U.S.C. §§§§§§ 1981, 1982, 1983, 1985, 1986,
1988), and the due process and equal protection clauses of the
Constitution (U.S. Const., amends. XIV, IV). Talley, 13 F.3d at
1032. The Seventh Circuit affirmed the dismissal of the
applicant’s complaint because he failed to link his disability to
the reason why his application was rejected by the CHA where he
-14- 1-09-1717
contended that his application to the disability program was
rejected solely on the basis of his criminal record. Talley, 13
F.3d at 1034. The Seventh Circuit concluded that the applicant’s
claim of being unlawfully discriminated against based on his
criminal record had no arguable basis in the laws cited by the
applicant. Talley, 13 F.3d at 1034-35.
We do not dispute the CHA’s ability to reject an applicant
based on a criminal record that includes convictions and
substantiated arrests. We, however, highlight the fact that the
applicant in Talley had an arrest and conviction record showing
convictions for a number of violent offenses. The Talley
application was not merely rejected based on a number of minor
felony and misdemeanor arrests that were dismissed without
prosecution, as was the case for our petitioner here.
We recognize that the ACOP does not provide an evidentiary
standard for rejecting an application based on a history of
criminal activity; however, the CHA did not even meet the
evidentiary standard for civil cases, namely, the preponderance
of the evidence. See, e.g., Department of Central Management
Services v. Illinois Labor Relations Board, 382 Ill. App. 3d 208,
220-21, 888 N.E.2d 562 (2008); Hearne v. Chicago School Reform
Board of Trustees of the Board of Education, 322 Ill. App. 3d
467, 480, 749 N.E.2d 411 (2001); In re Interest of Marcus H., 297
-15- 1-09-1717
Ill. App. 3d 1089, 1098, 697 N.E.2d 862 (1998). The CHA had no
evidence whatsoever that petitioner engaged in criminal activity
where the outcome of his arrests was the consistent dismissal of
the charges.
We find further support within the criminal context for our
conclusion that petitioner’s dismissed arrests do not constitute
a history of criminal activity and therefore cannot support the
rejection of his application for public housing. For example,
arrests cannot be used for purposes of impeachment; rather, only
convictions that are relevant to a witness’s credibility are
admissible impeachment evidence. People v. Brown, 61 Ill. App.
3d 180, 183 (1978); see People v. Pecoraro, 175 Ill. 2d 294, 309,
677 N.E.2d 875 (1997). Moreover, although a prior arrest may be
used as aggravating evidence at a sentencing hearing, it must be
deemed relevant and reliable to be admissible. People v.
Williams, 272 Ill. App. 3d 868, 879, 651 N.E.2d 532 (1995).
Absent evidence of reliability “the consideration of a mere
arrest is prejudicial error [citation] unless the record
demonstrates that the weight placed on the improper factor by the
court was insignificant. [Citation.]” Williams, 272 Ill. App. 3d
at 879. In capital sentencing hearings, “[h]earsay evidence of
other crimes which did not result in prosecution or conviction is
*** admissible” if there is a demonstration of relevancy and
reliability. People v. Hudson, 157 Ill. 2d 401, 450, 626 N.E.2d
-16- 1-09-1717
161 (1993).
Simply stated, there was no evidence that petitioner was a
potential threat to the health, safety, and welfare of the public
housing community. The sheer number of petitioner’s arrests does
not establish a history of criminal activity. While we agree
that the CHA need not demonstrate a history of convictions to
establish a history of criminal activity, the CHA, by its own
standards, was required to determine that the “outcome” of
petitioner’s arrests demonstrated a history of criminal activity
that could potentially threaten the health, safety, and welfare
of the premises. We conclude that the CHA failed to support its
rejection of petitioner’s application. The CHA’s decision was,
therefore, clearly erroneous.
We need not address petitioner’s constitutional challenges
raised for the first time on appeal because we have decided the
case on other grounds. Beelman Trucking v. Illinois Workers’
Compensation Comm’n, 233 Ill. 2d 364, 380, 909 N.E.2d 818 (2009)
(“[i]t has long been recognized that constitutional issues will
be reviewed by this court only when the case may not be decided
on nonconstitutional grounds”).
CONCLUSION
We affirm the circuit court’s June 5, 2009, order, reversing
the CHA’s denial of petitioner’s application for housing.
Affirmed.
GARCIA, P.J., and PATTI, J., concur.
-17- 1-09-1717
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
KEITH LANDERS,
Petitioner-Appellee,
v.
CHICAGO HOUSING AUTHORITY, a Municipal Corporation,
Respondent-Appellant.
Appellate Court of Illinois First District, FIRST DIVISION
September 20, 2010
Justice Bertina E. Lampkin authored the opinion of the court:
Presiding Justice Garcia and Justice Patti concur.
Appeal from the Circuit Court of Cook County. The Hon. William O. Maki, Judge Presiding.
COUNSEL FOR APPELLANT Chicago Housing Authority, Chicago, IL 60605 OF COUNSEL: Pamela Cotten and Thomas King
COUNSEL FOR APPELLEE Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL 60604 OF COUNSEL: Richard M. Wheelock
-18- 1-09-1717
-19-