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10/15/87 Naila Kurdi, v. Du Page County Housing

October 15, 1987

NAILA KURDI, PLAINTIFF-APPELLANT

v.

DU PAGE COUNTY HOUSING AUTHORITY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

514 N.E.2d 802, 161 Ill. App. 3d 988, 113 Ill. Dec. 20

Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding. 1987.IL.1548

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Naila Kurdi, appeals the order of the circuit court of Du Page County affirming the final determination of the Du Page County Housing Authority (Authority). Plaintiff's appeal arises out of the original administrative determination to terminate her rent subsidy under section 8 of the Federal Housing and Urban Development regulations enacted pursuant to the United States Housing Act of 1937 (42 U.S.C. sec. 1401 et seq. (1978)), as amended by the Housing and Community Development Act of 1974 (42 U.S.C. sec. 1437 et seq. (1978)), as administered by the Authority. The Authority terminated plaintiff's rent subsidy, and plaintiff appealed the Authority's action, requesting a hearing before a hearing officer. The hearing officer affirmed the decision of the Authority finding that she violated regulations concerning her family income and family size.

Plaintiff then filed a complaint for review by common law certiorari in the circuit court of Du Page County against the Authority and its director, Elaine Libovicz, defendants. Plaintiff sought review of the hearing officer's decision as well as a preliminary injunction. In addition to the record of the administrative proceedings, the Authority provided a supplemental decision which contained the hearing officer's factual findings to support the Conclusion that plaintiff violated the regulations pertaining to her income and family size. The circuit court then denied both plaintiff's complaint for review and her motion to reconsider.

Plaintiff raises two issues on appeal: (1) whether the admission of certain items of evidence was hearsay and therefore improperly admitted as evidence at the administrative hearing, and (2) whether the hearing officer's decision was against the manifest weight of the evidence.

Plaintiff, Naila Kurdi, receives a rent subsidy from the Department of Housing and Urban Development. The subsidy program is administered by the Du Page County Housing Authority (Authority). In April 1985, plaintiff rented an approved apartment in Woodridge, Illinois. Plaintiff entered into a contract with the Authority and the landlord whereby plaintiff would pay a smaller portion of the rent and the Authority would pay the larger portion. She executed forms that listed her sole income as public aid benefits and that she and her children would reside in the apartment. Plaintiff thereafter resided in the apartment with her three minor children.

In April 1986, the Authority notified plaintiff by letter that she was in violation of the housing agreement. Specifically, the letter cited her failure to report her husband as a household member and that she had received income from her husband. The letter apparently reflected the results of an investigation conducted by an Authority employee, Ms. Parvine McDonald.

The Authority subsequently terminated plaintiff's rent subsidy, and plaintiff sought and received a hearing before a hearing officer. At the hearing, plaintiff testified that her husband, from whom she was separated, was not a member of her household and that she had not received any income from him. Her mother similarly testified in her behalf as well as a friend of her husband's who testified that her husband resided with him during the period in question.

To support its contention that plaintiff was in violation of the housing agreement, the Authority introduced certain exhibits, among others, of forms received by the Department of Public Aid which had been completed by three former employers of plaintiff's husband regarding his employment during the period in question. These forms reflected the employers' responses that plaintiff's husband listed as his address the same apartment where plaintiff lived. An employee of the Authority also testified to receiving this same information from the Department of Public Aid in a telephone conversation. Plaintiff objected to this evidence on foundational and hearsay bases. The hearing officer also allowed into evidence, over objection, testimony by an Authority employee that unidentified persons at the apartment complex "believed" there was a man living there because they saw a man with plaintiff often. The only other relevant evidence to support its decision that was introduced by the Authority was evidence that plaintiff had used her maiden name when filling out the housing application and other forms at the time she was approved for housing.

In response, however, evidence was adduced by plaintiff that the policy of the Authority is not to ask the marital status of the occupant. Further, plaintiff testified that she voluntarily informed the Authority at the time of the renewal of her housing application that she was married and wanted her name changed to her married name because she was always receiving her mother's mail. She was separated from her husband and only saw him when he visited their two children several times a week. She had been receiving her husband's mail, but he wasn't given permission to use her address. Although the Department of Public Aid also initially terminated her public aid payments when the investigation began by the Authority, this action was rescinded.

At the outset, while both parties agree that plaintiff has a property interest which may not be terminated without affording due process rights, the parties dispute whether hearsay evidence was properly admitted before the hearing officer in the administrative hearing. Plaintiff contends that hearsay testimony admitted over objection is inadmissible in administrative hearings in Illinois. (See Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 199, 367 N.E.2d 1238; see also Jackson v. Board of Review (1985), 105 Ill. 2d 501, 508-09, 475 N.E.2d 879.) Defendants argue, however, that regulation 882.216(b)(6) (24 C.F.R. sec. 882.216(b)(6) (1986)), governing the administration of section 8 of the Federal Housing Assistance Program (United States Housing Act of 1937, 42 U.S.C. sec. 1401 et ...


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