apartment when the complained of conduct occurs off the premises of the leaseholder's dwelling unit. To achieve their broader goal of preventing any termination based on conduct of a nonoccupant occurring outside the leaseholder's dwelling unit, regardless of any reliance on para. 9(k) of the lease, plaintiffs must succeed on one of their other claims.
Counts 1 and 5 have multiple aspects to them. The vagueness and overbreadth aspects will be addressed first. Defendants contend that neither of those constitutional doctrines can apply to a government contract, but instead are limited to being applied to statutes and regulations. Defendants cite no case that reaches such a conclusion, but do cite a case that suggests such a conclusion in dictum. See Victor v. Brickley, 476 F. Supp. 888, 894 n. 3 (E.D. Mich. 1979). Plaintiffs cite no case in which vagueness or overbreadth was applied to a government contract, but argue that no good reason is given for distinguishing enforcement of a lease from enforcement of a criminal misdemeanor statute. They contend that losing a lease under para. 9(k) is a penal provision essentially indistinguishable from a criminal forfeiture provision. Plaintiffs cite to a criminal forfeiture case involving forfeiture of a federally subsidized lease and subsidy payments in which the court holds that loss of that property for the controlled substance crime committed would be an excessive penalty violative of Eighth Amendment prohibitions on excessive punishment. See United States v. Robinson, 721 F. Supp. 1541, 1543-44 (D.R.I. 1989). In so holding, the court emphasized the devastating impact that loss of subsidized housing would have on an evicted tenant. See id. at 1544. Plaintiffs also point out that the particular lease provision in question is mandated by federal regulation, see 24 C.F.R. § 966.4(f)(11), possibly raising the question of whether the regulation itself is vague.
In any event, since the lease provision is neither unconstitutionally vague nor unconstitutionally overbroad, it will be assumed, without deciding, that those doctrines apply to the lease provision. However, the vagueness doctrine does not apply equally to all circumstances. It applies less strictly to enactments concerned with economic regulation and those involving only civil penalties. Keeffe v. Library of Congress, 588 F. Supp. 778, 789 (D.D.C. 1984), aff'd in part, rev'd in part, 250 U.S. App. D.C. 117, 777 F.2d 1573 (1985). Thus, to the extent the doctrine should be applied to a government contract, it applies less strictly. On the other hand, it applies more strictly to the extent it impinges on constitutionally protected rights such as First Amendment rights. Id.
Plaintiffs contend para. 9(k) is vague because it is unclear as to what persons the leaseholder can be responsible for and because it is also unclear as to where the conduct can occur. This court, however, has now construed the provision, with regard to nonoccupants, as being limited to persons who are in the leaseholder's dwelling unit with the leaseholder's consent. Plaintiffs also contend that the phrases "in a manner which will not disturb his neighbors' peaceful enjoyment" and "maintaining the development in a decent, . . . condition" are vague. Such phrases, however, are sufficiently clear for a lease and can be understood by a tenant. Contrary to plaintiffs' assertion, a tenant would not reasonably believe that such provisions include prohibitions on criticism of CHA. There is no vagueness problem. There is also no overbreadth problem. The lease provision does not reach "a substantial amount of constitutionally protected conduct." It does not generally prohibit visits from relatives or others, it only prohibits visitors from engaging in certain nonprotected conduct while on the leaseholder's premises. The vagueness and overbreadth aspects of Counts 1 and 5 will be dismissed.
Counts 1 and 5 also contain a claim that defendants violate due process when they terminate a lease based on the conduct of another over whom the leaseholder has no control. Although defendant moves for summary judgment on Count 1, plaintiffs do not. Named plaintiffs move for summary judgment on Count 5, but as previously noted, there is a factual dispute that prevents granting summary judgment in favor of Turner. Therefore, it need only be considered whether defendants are entitled to summary judgment on Counts 1 and 5 and whether Donner is entitled to summary judgment on Count 5.
The parties agree that, to succeed on their substantive due process claims, plaintiffs must show that defendants' actions (1) deprived plaintiffs of their property (2) for an irrational or invidious purpose. Long Grove Country Club Estates, Inc. v. Village of Long Grove, 693 F. Supp. 640, 657 (N.D. Ill. 1988). The parties further agree that there is a third element. Plaintiff must also show either that there is a violation of some other substantive constitutional right or that state law remedies are inadequate. Polenz v. Parrott, 883 F.2d 551, 557-58 (7th Cir. 1989); New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990). The parties agree that plaintiffs have a protectable property interest in continued tenancy in public housing. Joy v. Daniels, 479 F.2d 1236, 1239-42 (4th Cir. 1973). Furthermore, the parties agree that it would be an irrational deprivation of property to evict one of the plaintiffs based on the conduct of a third party when there is no causal nexus between that plaintiff and the third party. Tyson v. New York City Housing Authority, 369 F. Supp. 513, 518-19 (S.D.N.Y. 1974). They do disagree as to what constitutes a causal nexus, with both sides implicitly agreeing that being an occupant of the leaseholder's unit would be a sufficient causal nexus, but disagreeing as to whether the conduct of a guest can be attributed to the leaseholder. They do agree that being a relative is, by itself, an insufficient nexus. See id. Furthermore, plaintiffs contend both that the right to association is interfered with and that state remedies are inadequate, with defendants disagreeing with both of those contentions. In light of the factual disputes as to David's and Carl's visiting status and the full contours of CHA's general policies as to lease terminations based on the conduct of guests, resolution of legal issues as to the required causal nexus will await the trial.
As regards the third element, there is a factual dispute as to whether defendants interfered with plaintiffs' associational rights by treating the conduct of nonresident family members differently. There is also a factual dispute as to whether the state administrative procedures provided were adequate. Plaintiffs also argue, though, that regardless of the adequacy of the administrative procedures, this can be no basis for denying their claims because of available state remedies since the procedures defendants refer to do not provide for monetary damages. First, it is noted that state law remedies can be found to be adequate even if they do not provide the full extent of remedies that § 1983 provides. See Easter House v. Felder, 910 F.2d 1387, 1406 (7th Cir. 1990) (en banc), cert. denied, 498 U.S. 1067, 112 L. Ed. 2d 846, 111 S. Ct. 783 (1991). In any event, the question of damages should not arise unless the state only provides postdeprivation remedies. The procedures that defendants point to in this case are predeprivation remedies. Thus, if a plaintiff were to succeed pursuant to the available procedures, she would not be evicted and thus would not have property deprived for an invidious or irrational reason. Therefore, if the predeprivation procedures are adequate, plaintiff would have no claim unless there is a violation of a substantive constitutional right.
As defendants correctly contend, they cannot evict any tenant who opposes eviction without bringing a state court forcible entry and detainer action. See Ill. Rev. Stat. ch. 110, paras. 9-101 et seq. Such an action provides adequate due process. See Johnson v. Illinois Department of Public Aid, 467 F.2d 1269, 1273-74 (7th Cir. 1972); Matthews v. Round Barn Manor Association, No. 85 C 10702 (N.D. Ill. Aug. 4, 1986). Moreover, constitutional defenses can be raised in such proceedings. Matthews, supra. See also Peoria Housing Authority v. Sanders, 54 Ill. 2d 478, 298 N.E.2d 173 (1973). Thus, plaintiffs could prevent any eviction based on an inadequate causal nexus from ever occurring by raising the defense that eviction on such a basis is constitutionally prohibited. Since there is a constitutionally adequate predeprivation procedure available, plaintiffs can only satisfy the third element of their substantive due process claim if they can show their right to association was infringed. Since there are disputed facts as to that issue as well as the causal nexus element, summary judgment cannot be granted for either party on the substantive due process claims contained in Counts 1 and 5.
Counts 2 and 6 are the claims based on interference with the right to associate with one's family. As previously indicated, there are factual disputes that prevent granting summary judgment for either side on these counts.
Counts 3 and 7 are based on alleged violations of the Housing Act. In named plaintiffs' motion for summary judgment, it is expressly conceded that Count 7 should be dismissed. No express concession is contained in the class plaintiffs' motion, but plaintiffs provided no response to defendants' argument that Count 3 should be dismissed. Therefore, Counts 3 and 7 will be dismissed.
For the foregoing reasons, Donner and the class are entitled to declaratory and injunctive relief on, respectively, Counts 8 and 4 of the complaint. Turner's Count 8 claim, the "causal nexus" claims in Counts 1 and 5, and Counts 2 and 6 remain to be tried.
IT IS THEREFORE ORDERED that:
(1) Plaintiffs' motions for summary judgment are granted in part and denied in part. Plaintiffs will be granted declaratory and injunctive relief on the class's Fourth Cause of Action and Donner's Eighth Cause of Action.
(2) Defendants' motion for summary judgment is granted in part and denied in part. The Third and Seventh Causes of Action are dismissed. The vagueness and overbreadth aspects of the First and Fifth Causes of Action are also dismissed.
(3) The parties are ordered to submit amended proposed findings of fact and conclusions of law consistent with this opinion at a status conference to be held on March 19, 1991 at 9:15 a.m.