Lindsey v. Normet

PETITIONER:Lindsey
RESPONDENT:Normet
LOCATION:Georgia State Capitol

DOCKET NO.: 70-5045
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 405 US 56 (1972)
ARGUED: Nov 15, 1971
DECIDED: Feb 23, 1972

ADVOCATES:
John H. Clough
Theodore B. Jensen

Facts of the case

Question

Audio Transcription for Oral Argument – November 15, 1971 in Lindsey v. Normet

Warren E. Burger:

We will hear arguments next in number 5045, Lindsey against Normet.

Mr. Clough.

John H. Clough:

Mr. Chief Justice and may it please the Court.

This is an appeal from a three-judge court’s denial of injunctive and declaratory relief, sought by Donald and Edna Lindsey on behalf of themselves and the class of appellants, including all tenants in the State of Oregon.

The Lindsey’s attack to constitutionality of Oregon’s Eviction Law, seeking to enjoin its enforcement of it is objectionable provisions by appellee judges.

The Lindseys had been having difficulties in getting there landlord, appellee Normet to repair the condition of their home which condition included lack of plaster, downstairs toilet out of order, missing rear steps, etcetera.

Since pictures are better than words, we specifically refer the Court to the color photographs in evidence marked as plaintiff’s exhibits number 25 to 37 in the record.

On November 10 —

Potter Stewart:

Those photographs are in the appendix?M

John H. Clough:

No, they are not.

They were unable to print them because they were color photographs, Your Honor.

On November 10, 1969, their home had been condemned by the Bureau of Building Inspections of the City of Portland because of the violation of Portland’s Housing and Building Codes.

Since Donald Lindsey was substantially confined to a wheelchair with crippling arthritis of both arms and legs and neither he nor his wife could drive a car, they did not have the mobility to search for another home.

Furthermore, their search would have been rendered more difficult by the factor that the overall vacancy rate for Portland was less than 2% and for low income families less than 1%.

Warren E. Burger:

Would your case be any different if this was a 25-year-old professional football player in the peak of physical condition and health?

John H. Clough:

In some respects it might and some respects it might not.

There are some aspects of the case.

Warren E. Burger:

Constitutionally?

John H. Clough:

Yes, some aspects of the case would make a difference because of the indigency and ability to search for a home.

Although, constitutionally –-

Warren E. Burger:

Let us make him an unemployed professional football player that is indigent, then it would —

John H. Clough:

Constitutionally, it would make no difference.

Low-income housing is that which has rents within the financial reach of a typical family of four whose income is from $0-4,000.00 a year.

In Portland, an estimated 75% of low income families rent, but Lindsey’s home was a low-income home.

Most housing available for low-income families is quite often substandard and the condition is generally very poor in Portland.

Low-income people pay a higher portion of their monthly income for rent and generally pay higher utility in heating bills because of deficiencies in plumbing, insulation and wiring.

Harry A. Blackmun:

Mr. Clough, is always general material in the record?

John H. Clough:

Yes, it is Your Honor.

The last statement, Mr. Justice Blackmun was in the deposition of Josephine Brown, our expert which is admitted into evidence and as plaintiff’s exhibit number 24 at page 26.

Low-income people generally have a difficult time finding a place because of the advance month’s rent for cleaning deposits often required.

John H. Clough:

After the request to the landlord to repair these conditions and no action was forthcoming, they decided to attempt to improve their lot where they lived and withheld their rent on December 1, 1969 to compel their landlord to repair the premises.

Warren E. Burger:

At anytime in the course of these proceedings was there a tender of the rent into the custody of the Court?

John H. Clough:

The Court had the option and the Court preferred — the tender was offered at the institution of the proceedings and the court preferred that we as their attorneys keep the money in our escrow account and specifically condition to temporary restraining order based upon that.

Warren E. Burger:

Well, then it was really in the custody of the Court because you were holding it as an officer of the Court?

John H. Clough:

That is correct.

On December 15, 1969, they were sent a letter from their landlord’s attorney demanding them to pay rent or vacate.

At this point, they were faced with the realities of having an eviction action filed against them, pursuant to the statute under attack in this appeal.

There was no question that an eviction would cause the Lindseys irreparable harm.

Evictions of low-income families often result in a continuing downward and tightening spar which they find an emotional block to overcome.

They do not have the cost of moving and they cannot find housing.

They are often forced into less adequate housing.

They lose standing in the community and in their children’s eyes and large families are often split up.

In this background, this action was filed in the Federal District Court prior to any eviction action being filed by the Lindsey’s landlord.

The best way to describe the operation of the eviction statute is by taking the Lindseys through their eviction, had one been filed by their landlord.

A complaint and summons would be filed and served upon the Lindseys, setting the time for trial within two to four days which may include weekends.

Potter Stewart:

But this did not actually happen to the Lindseys?

John H. Clough:

No.

Potter Stewart:

They filed this action to the District Court before alleging that they were threatened with this, is that right?

John H. Clough:

That is correct.

I am using the Lindseys as what would happen to describe the operation of the statute.

For example, they could be served on a Friday with a trial set on Monday or Tuesday.

However, two days is all the time for trial that the tenant has a matter of right.

Within this time, they would have to contact the lawyer, make an appointment and get him to take the case.

His first move would be to ask for continuance and all that he could get without posting cash security would be two days, the granting of which is only the discretionary under the statute.

Even though that defenses that Lindseys would like to raise would not be heard by the Oregon Courts because of the statute he is challenging.

He might still have conventional defenses based upon issues of fact, regarding what rent was agreed to or if it were truly paid.

Litigation of these issues may well require interviewing potential witnesses, subpoenaing them, legal research and trial preparation.

At trial, Lindsey would want to raise defenses based upon his landlord’s refusal to obey the housing codes, but these defenses will not be heard or adjudicated on their merits.

The reason for this is found on the face of the Oregon statutes.

They provide that the landlord’s complaint is sufficient as it states: (1) A description of the premises, (2) That the defendant is in possession, (3) That the defendant unlawfully holds by force which is deemed to include failure to pay rent within 10 days after it is due,and (4) that the landlord is entitled to possession.

John H. Clough:

The statute goes on to provide that if the Court or Jury finds the complaint to be true, the tenants shall be evicted.

Thus, these statutes on their face preclude the raising of affirmative legal defenses and they have been so construed by the Oregon Courts.

Harry A. Blackmun:

Mr. Clough, how old are the Oregon statutes?

How long had they been on the books?

John H. Clough:

The last time that the FED, the eviction law was changed in any matter was in 1909, although the case of Friedenthal v. Thompson goes into a historical analysis where they were in effect back in the middle 1800s.

Harry A. Blackmun:

Has there been any endeavor to change the statute legislatively?

John H. Clough:

There has been an effort yes, Mr. Justice Blackmun.

Harry A. Blackmun:

I just wonder if one could say that possession of the premises during the controversy such as you envision here with the Lindsey’s is a matter at issue and that your legislature has come down on the side of the landlord rather than the side of the tenant in deciding a policy question?

I take it you do not agree with that?

John H. Clough:

No, I do not, Mr. Justice Blackmun.

Harry A. Blackmun:

But do you for the first time in the century are raising question?

John H. Clough:

The question has been raised, Mr. Justice Blackmun in several cases that have gone up to the Oregon Supreme Court on various aspects.

So that for example Friedenthal v. Thompson involved the constrictions on limitations of time.

There were several cases that sought to raise equitable types of offenses and these were interpreted by Oregon Supreme Court.

The double rent bond on appeal has been construed by the Oregon Supreme Court and been upheld as constitutional.

Legal defenses had been specifically disallowed by the Oregon Supreme Court.

Harry A. Blackmun:

Of course you could have resolved this dilemma by appropriate legislation, could you not?

John H. Clough:

Of course, that would be a very welcome response, but the legislature of Oregon has not seen as to do so and our — one of the main lines of attack that we have here on the statute is due process which — that does not matter that the statute either procedural like constricts the courts and the litigants so that the it dives in due process or it does not.

Well, that is true of any statute.

Any statute could be changed at any given time by state legislature.

Under the Oregon statutes, the fact that the tenant may would have withheld rent because the landlord failed to make proper repairs or the fact that the landlord brought the action in retaliation for the tenant having recorded code violations to a city agency or complaint to the landlord or even the fact that the action is brought because of the tenant’s raise.

Those facts are not only considered irrelevant, they are not even heard.

These defenses are not judged on their merits.

They are not even heard and are stricken.

At the conclusion of the trial, if the tenant looses and desires to remain in the premises, pending the appeal to the Circuit Court, he must post an open-ended double rent bond to guarantee twice the amount of the rent to be paid from the inception of the action until final determination by the Appellate Court.

Byron R. White:

Do you object to paying in the Court the rent while the action is going on?

John H. Clough:

Not at all, as long as it becomes due.

Byron R. White:

Yes, I understand.

John H. Clough:

Because of the indigent tenant, but there is no objection to that.

Byron R. White:

And you do object to paying it to the landlord?

John H. Clough:

If the situation is such —

Byron R. White:

It is what the case is all about, I guess?

John H. Clough:

Yes, it is the case is what as such lends itself, that paying it to the landlord would defeat the whole purpose.

Byron R. White:

But you could sue the landlord in an independent action on an attempt to collect for breach of the lease or something?

John H. Clough:

That is true, but would not, that action would not stay this proceeding and that the whole issue here —

Byron R. White:

But you are not giving as rights under the Oregon Law, you do not give up any right to sue the landlord in you own action, I gather?

John H. Clough:

Not in an independent action for contract, but the issue here is possession of the premises.

Byron R. White:

I understand.

John H. Clough:

And that is the key issue that the tenant is interested in.

Byron R. White:

Well, he can retain possession by paying the rent to the landlord?

John H. Clough:

By continuing to pay the rent of the landlord, but then it defeats this whole purpose.

Byron R. White:

Well, it does defeat anything if you — what does it defeat, if you can nevertheless recover what you paid in the possession?

John H. Clough:

The problem — the problem with that is it forces every tenant into litigation.

The —

Byron R. White:

I know that, but you concede that pending litigation you have to pay the rent anyway?

John H. Clough:

But even —

Byron R. White:

You pay in the court.

You are not keeping the money.

John H. Clough:

That is quite correct.

However —

Byron R. White:

You are paying the money, you are being separated from the rent as it falls due and you are going to be separated from it as long as the issue between you and the landlord is settled?

John H. Clough:

And you will also be separated from your property, if the landlord decides to (Voice Overlap)

Byron R. White:

Not as long as you pay the rent in the Court, you are not being dispossessed?

John H. Clough:

He could give a 30-day notice in retaliation for your invoking the Court procedures and what this action would do, would force them to involve the —

Byron R. White:

Well, I have seen — If I do not understand when the landlord brings this action, this forcible entry and detainer action against the tenant?

John H. Clough:

Yes.

Byron R. White:

Now, the tenant can retain possession if he pays rent in the Court?

John H. Clough:

Only for the time of the continuance.

Byron R. White:

Yes.

John H. Clough:

If he gets a continuance and it must be cash in advance.

John H. Clough:

In other words, he cannot — If he is an indigent tenant who has his money carefully budgeted he could not financially afford to pay enough to get a continuance for two or three months.

Byron R. White:

What do you mean get a continuance?

John H. Clough:

A continuance of hearing, the possessory action, the action for eviction.

Byron R. White:

What does he actually have to put out to get the continuance?

How much money?

John H. Clough:

That would vary depending on how much time he has.

Byron R. White:

Suppose he does not have any money that any rent that he is in default on in the first place?

John H. Clough:

Well, presumably under our situation he would have that money that if he were in default on it and there will no objection to that.

Byron R. White:

And then his rent falls due, he would have to put up the money?

John H. Clough:

We would have no objection to that, but that is not the way to that statute operates.

Byron R. White:

So how does it operate?

John H. Clough:

You have to put up cash in advance.

In other words, if he desired a continuance for two months, he would right then and there have to put up cash and guarantee it for two months.

Warren E. Burger:

Mr. Clough, I seem to have missed something.

When I first asked you about depositing the rent in the custody of the Court or under the control of the court somewhere, I thought your response was that this was done as a discretionary matter, but judge not as a matter of any requirement under the Oregon statute.

Will you clear that up for me?

Does the Oregon Statute require the payment of the money, the rent in escrow?

John H. Clough:

No, it does not, Mr. Chief Justice —

Warren E. Burger:

My first impression was correct then?

John H. Clough:

Your first impression was correct.

I thought you were referring to the Federal Court action.

The Court below opted the rent escrow.

Warren E. Burger:

(Voice Overlap)

John H. Clough:

That was the three-judge court, yes.

Warren E. Burger:

And would you think that was a reasonable condition uniformly to be attached to any right to maintain possession?

John H. Clough:

Perfectly reasonable or some variation.

However, the Court felt this would be something for the state courts to work out.

Warren E. Burger:

If you did not have that deposit in escrow, might you not be confronted, whether a counter suggestion that this was a taking of property without —

John H. Clough:

Of course.

Warren E. Burger:

— taking of the landlord’s property without due process and without compensation?

John H. Clough:

That is correct.

Warren E. Burger:

So that you would accept that as an invariable condition to maintaining possession?

John H. Clough:

Yes, we would have no problems with that whatsoever.

The double rent bond on appeal is in addition to the usual cost bond.

This bond may be filed as a cash bond, personal bond or for maturity bond, in any event with two sureties.

It is open ended and may last for a month or a year.

Within five days after the posting of the bond, the landlord can require justification of the sureties by their presence in court.

At the conclusion of the appeal, if the tenant loses, the landlord simply executes on the bond or if the money has been paid into court, upon the filing of the order, it is simply dispersed.

The landlord collects the entire amount of the bond, not just to the damages or expenses if any.

If the tenant loses at the Circuit Court, he may appeal to the State Supreme Court and the same process is again repeated.

We are challenging the three-major restrictions on the low-income tenant’s ability to properly defend himself in Oregon.

These are; first, the short time to prepare for trial, (2) The refusal of the Court to hear his defenses and (3) the denial of his ability to appeal because of the double rent bond requirement.

We contend that these restrictions violate both the equal protection and Due Process Clauses of the Fourteenth Amendment because they affect certain fundamental interests of the tenant.

The first of these fundamental interests is his right to retain peaceful possession of his home or the sanctity of the home.

Second, is his right to decent housing.

Third, his right to meaningful access to and equal treatment in the courts.

While all of these interests has been treated as fundamental by this Court in various decisions, the right to retain peaceful possession of once home has received the most attention, from the Court being protected under the Third, Fourth, Fifth, Ninth and Fourteenth Amendments.

For example in Silverman versus United States at 365 U.S., this Court rejected evidence obtained by the use of spiked mike which intruded several inches under the wall of the defendant’s home as it would have obtained by “actual intrusion” into a constitutionally protected area.

In Camara versus Municipal Court at 387 U.S., this Court held that a warrant must be obtained before homes can be inspected by City Agencies.

And in Rowan versus United States Post Office Department, this Court upheld in the face of the First Amendment attack, a statute protecting householders from junk mail intrusions.

If this Court has found the sanctity of the home to be worthy of constitutional protection against these sporadic intrusions, how much more worthy a protection is the right to be free from a total ousting of possession?

Total ousting by the County Sheriff is what faces the tenant who looses an eviction action in Oregon.

It is almost inevitable under the procedures we are challenging.

In addition, certain of the restrictions, we are dealing with involve a suspect classification, one based upon wealth, since indigent tenants do not have the resources to post either the continuance bond or the double rent appeal bond.

We do not feel that we are asking for anything unreasonable in this case.

We fully recognize that there are certain interests of the landlord that the State of Oregon may reasonably protect, if it wishes to do so.

The main interest meant to be protected by the restrictions we are challenging is the landlord’s desire to see that he will not lose rent money, he may have come into it during the litigation, that he eventually might win.

Statutes designed to protect this interest should be constitutional if they are reasonable, but the restrictions involved here go too far.

They are unreasonable at the expense of the tenant’s interests in protecting his home.

We can understand, for example, shortening the time to prepare for trial on eviction action to something less than that available to other defendants.

John H. Clough:

But only two days as a matter of right is so short as to make the mockery of the judicial system.

Warren E. Burger:

Would you be here if that were 20 days, Mr. Clough?

John H. Clough:

If that were 20 days, probably not on that issue.

It would depend entirely how that the Oregon Court has set up the procedure.

Potter Stewart:

Well, what are the defenses available under the Oregon System just that payment is one, is it not?

John H. Clough:

Payment is one.

Yes actually —

Potter Stewart:

Is there is anything else?

John H. Clough:

There are certain equitable types of defenses such as showing that agreement between the parties was something aside from what its apparent nature was and their true relationship was not that of landlord-tenant such as, a deed is really a mortgage, and therefore, the eviction procedure should not be used, the Oregon procedure should be used (Voice Overlap).

Potter Stewart:

Or that what appears to be a tenancy at will; might be month-to-month or what appears to be a month-to-month might be an actual lease for a year or something like that?

John H. Clough:

No those would still be landlord-tenant and they will still be (Voice Overlap)

Potter Stewart:

Is that available as a defense that, is what I mean?

John H. Clough:

That the lease, that there is in fact a lease for year, a written lease that may be it depends depending on the circumstances of the case, but again we are dealing with that fourth item in the complaint with landlord’s right to the possession, not the third item which we are concerned with raising any contractual defenses.

Potter Stewart:

My thought was that it cannot be both ways.

In other words, you say on one hand that Oregon does not allow you to make any real defenses and on the other that you should be given more time to make defenses.

Well, if there are no defenses to be made, like the time is not a very —

John H. Clough:

Like the time is contingent upon the ability to raise its defenses of course.

Byron R. White:

Can I ask you if the, in the FED suit in response to it, you could not only claim that you are not in default, but that the statute itself is unconstitutional and have — get a constitutional decision in that case and if you did afford the appeal bond, appeal any rejection of your constitutional ground?

John H. Clough:

In theory that (Voice Overlap) that would be available.

Byron R. White:

Well, now this FED suits were pending at the time you went to the Federal Court, were they not?

John H. Clough:

Some of them, there is none filed in the Lindsey case.

Byron R. White:

But they were in the others?

John H. Clough:

There were three others and for various reasons those three cases settled and were never appealed.

Byron R. White:

And what if the case of controversy between the one person in that landlord,l had he threatened the eviction or what?

John H. Clough:

The case in controversy is that he threatened eviction into invoke the use of the Courts.

Byron R. White:

But he never did?

John H. Clough:

But he never did because of this action.

Byron R. White:

I see.

John H. Clough:

Because there was a restraining order issue in this action.

Warren E. Burger:

Let us back-up to a case where there is a tenancy from month-to-month and for reasons not disclosed the landlord decides he wants to terminate the tenancy and gives the appropriate notices and at the end of the notice period, the tenant declines to leave, claiming that it is very inconvenient, there is no other housing available, etcetera.

Warren E. Burger:

Now, that you say that there is a due process right to remain, it would in turn will enable them to remain in possession, notwithstanding the landlord’s compliance with the statute in giving them notice?

John H. Clough:

Not in the fact situation Mr. Chief Justice that you gave to me.

Warren E. Burger:

In other words, in that situation the landlord can evict the —

John H. Clough:

He would have no defense.

Warren E. Burger:

There would be no defense?

John H. Clough:

However, if he were raising the defense that he should be entitled to at least raise and be heard on a defense that the landlord is evicting for example in retaliation, puts testimony in, but that is not the fact —

Warren E. Burger:

Or if he has a one year lease or the things that Mr. Justice Stewart was talking to you about in alternative, that if you have a clear case of that kind where there is no valid defense, then you concede that the landlord can evict —

John H. Clough:

Of course, there is no denial of due process because the defense has not been raised.

Warren E. Burger:

Then the two days would not be a problem for you in that circumstance?

John H. Clough:

Yes, but the statute is over inclusive because it includes all of these other situations too.

There is no differentiating between that type of situation and the type of situation where the tenant seeks to raise retaliatory eviction as a defense.

Warren E. Burger:

Well, then you come down to a claim of unconstitutionality of the statute as applied rather than facially, it that not right?

John H. Clough:

It would be on its face because the statute is over inclusive on its face.

Warren E. Burger:

I suppose six of one-and-a-half dozen of the other has applied with the specific case, is it not?

John H. Clough:

It might be merged to both, yes.

I like to reserve my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Jensen.

Theodore B. Jensen:

Mr. Chief Justice and members of the Court.

I am appearing here for the defendant, Mrs. Normet.

The factual situation in the case actually as we see it was that Mrs. Normet was the record owner of the property, but had become so with an outstanding contract of sale on the property to a party who had in turn rented the property to the Lindseys.

When Mrs. Normet on default on this contract under which the property had been sold and more or less had been abandoned by the contract purchaser.

Mrs. Normet had begin to collect and she did receive the rent payments from the Lindseys up through November, applied them on the contract of sale and commenced a suit to foreclose the contract in order to clear up the title of the property.

Then in November, the City of Portland, under its Housing Code, notified both the Lindseys, they being the tenants and Mrs. Normet that the property was substandard in a good many respects and posted a notice that the property be vacated or the repairs made.

At that point Mrs. Normet through her attorney gave a notice to the Lindseys requesting them to vacate the property in accordance with order of the city of Portland.

She not wanting to go ahead and spend the money which would be required to make the repairs because of the existing cloud on the title of the property at that particular time.

Now, the Trial Court made a finding that there was a landlord-tenant relationship between Mrs. Normet and the Lindsey’s and treated it as though it were an ordinary landlord-tenant relationship.

In this case, we view the summary of the argument and briefs of the appellant that they are saying on two grounds that the Oregon Eviction Statutes are unconstitutional because they do not grant equal protection and due process at law and that it deprived tenants of rights and privileges afforded to them in the civil eviction actions in Oregon by denying basic rights needed to enable them to receive fundamentally fair hearings on their defenses.

Now, I would like first of all to direct my remarks to the Oregon Eviction Law briefly.

First of all, the Oregon Eviction Law is only available or is only used when there exist a landlord-tenant relationship.

Theodore B. Jensen:

It does not apply in any other situation.

It protects, our position is that it protects all tenants equally.

It does not make any distinction as to what their funds may be that they have available to them whether they are rich or poor.

It just applies and gives equal protection to all tenants.

If the tenants, first of all, we have no self-help procedure in Oregon that is where the landlord can go in and evict the tenant himself.

If he wants to evict a tenant from the property he has to go in to the Court and get a determination that he has the right to take possession from the tenant.

He can do this, if the tenant has failed to pay the rent within 10 days after due or if the tenant’s lease has expired and the tenant has refused to get out or if the tenant’s month-to-month or what tenancy or whatever the term is has been terminated upon either 30 days notice or if it is a longer tenancy where than on a notice equivalent to the term and then if a tenant refuses to vacate, the landlord must in order to have a determination then of his right to take possession, he must go in and file a complaint in court, setting forth, it is kind of a notice sort of a complaint, at least the equivalent of the Federal rules requirements, in which he in effect says that the tenant is withholding the premises unlawfully and with force and that the landlord is entitled to possession.

That is the only issue in the FED case at that point in the complaint.

Potter Stewart:

As I understand it, under Oregon Law the landlord is not permitted to join with FED complaint, any other claim eg a claim for the payment background or anything, is that correct?

Theodore B. Jensen:

Mr. Justice that is correct and if he does join, he can join an action for rent if he wishes to do so or for any other action that might be joinable under our statute.

Potter Stewart:

But then if he does?

Theodore B. Jensen:

But if he does then the FED procedure is not followed, the summary procedure is not followed —

Potter Stewart:

It becomes (Voice Overlap)

Theodore B. Jensen:

— and the case is subject to the ordinary trial of procedure and instead of a the two to four days for which the summons would state, it would be 10 days observed in the county, 20 days in any other county where the individual did not actually reside.

Potter Stewart:

And it becomes just like any other contract action?

Theodore B. Jensen:

Yes, sir and in any and all defenses, including counter claims, could be raise then in the action.

I would say —

Potter Stewart:

If the plaintiff joined anything except the eviction?

Theodore B. Jensen:

Yes, that is correct.

I understand —

Potter Stewart:

Then defenses would be available and it would become an ordinary lawsuit?

Theodore B. Jensen:

Yes.

Potter Stewart:

This summary procedure will no longer take place?

Theodore B. Jensen:

That is correct Mr. Justice.

As a matter of practice, in most FED cases the simple landlord-tenant relationship of rental of a residence on a month-to-month basis file just for possession without joining any rent or any other cause of action with it.

Now, I think the Court should realize that the FED Eviction Laws of Oregon apply not only to the rental of residences, but it applies and is available and used in connection with commercial properties where there is a lease for example and the tenant has refused to vacate at the end of the lease with most leasers providing that if they hold over at the end of the term, then they are month-to-month tenants, then you will have to give a 30-day notice and bring your FED action.

But you can see that in cases involving commercial property where the tenant may find a tremendous financial advantage to him to remain in a particular property for another year or so, it would be a unfair to permit him to stay in just by continuing to pay his rent if the landlord has given him the 30 days notice and his lease term is over.

Now, we have personal service in Oregon of the summons in complaint on the tenant and the summons provides that the matter will come before the Court and the return made from two to four days, the day of service is not counted.

So, it comes up then before the Court at that time.

There need not be any written answer filed.

Theodore B. Jensen:

We have procedure in the Oregon Law which grants to the defendant tenant two more days continuance for without any showing of any kind.

He can have an additional two days continuance and then if that is not a sufficient amount and he wishes to have a further continuance that can be obtained by posting security for the payment of his rent.

That may — to cover the period of the time for the continuance that he wants, in other words, the practical aspect of that is that he does not have to go back and pay his delinquent rent, that is not an issue in the case.

It is possession and if he wants to remain in possession and get a continuance of the case for more time for preparation or for whatever the reason may be, he can do so from a practical aspect by paying the month’s rent and that would give him a 30-day extension of time.

Warren E. Burger:

Pay it in the Court?

Theodore B. Jensen:

There is no provision, Mr. Chief Justice for the payment of the rent into Court.

I assume that the Trial Court could make that provision.

Warren E. Burger:

Would not the Court have inherent power to do that?

Theodore B. Jensen:

I believe that it would be.

It has not been the practice in Oregon particularly.

Harry A. Blackmun:

It happened in this case though?

Theodore B. Jensen:

No, it did not.

Harry A. Blackmun:

It was in the Federal Court.

Theodore B. Jensen:

And the thing about this case is that there was no FED eviction commenced by Mrs. Normet against the Lindseys.

The claim here is that Mrs. Normet has threatened commencing an eviction case against them but there actually was no case filed.

Thurgood Marshall:

But I thought that it led from lawyers to the Lindseys threatening a lawsuit, is that correct?

Theodore B. Jensen:

We have — I think that a counsel would agree with me that we have a different interpretation of the notice that was sent by Mrs. Normet’s attorney to the Lindseys.

It appears it was a letter.

It appears in appendix.

Thurgood Marshall:

May I see it?

It is an exhibit, is it not correct?

Theodore B. Jensen:

It is an exhibit.

That is not in the — it is an exhibit in the case.

It is exhibit number 14.

The appellee’s interpretation of the letter was that it was a notice or demand or request for the Lindseys to comply with the order issued by the City of Portland Building Department for the premises to be vacated because it was substandard.

Either party made it, Mr. Justice.

Potter Stewart:

You said that personal service is required in Oregon?

Theodore B. Jensen:

Yes, it is.

Potter Stewart:

In the amicus brief, everybody all talked about the so-called sewer service because I gather in many states a service by attaching the process to the door of the house is something that is sufficient and process servers often find it more convenient to do that, but actually (Voice Overlap) up down the sewer.

I wonder if the failure to make personal service would be a defense in this action?

Theodore B. Jensen:

Yes, it would be now, I would say —

Potter Stewart:

Of course, I suppose if that defendant comes into court, he is uttered an appearance, so instead of (voice Overlap) in order to make that defense he would to have his special appearance, would he?

Theodore B. Jensen:

Yes, he could under a special appearance to quash the service and we have no —

Potter Stewart:

Because there was no personal service?

Theodore B. Jensen:

Yes, to quash whatever the service was and it would — he can reserve that by making a special —

Potter Stewart:

And what happens if for want of personal service, the tenant never did have an actual notice to this proceeding, then what happens?

Theodore B. Jensen:

Well, we have the service in the FED case, is the same as in any other action in the State of Oregon (Voice Overlap).

We have personal service but you can have substituted service by publishing, there could be a publishing which if the person is concealed within the state or is outside the state and his location is not known, but in support of that there would have to be an affidavit, prepared and filed which contained facts, sufficient to show that there had been a reasonable search made for the party before the publication of the summons.

Potter Stewart:

If the defendant were absent outside the state, you would not need to bring an eviction proceeding, would you?

Theodore B. Jensen:

Well, depending on had he left some of his belongings in the property perhaps or something of that nature, you might be taking a chance to go in and have self-help taking possession of the property, but the service is no different in the FED eviction case in Oregon than it is in any other case.

So we do not have what is called conspicuous service or so-called sewer service as I notice in the amicus curiae briefs, they have in New York and Florida.

We do not have that.

We require personal service.

Now, either party can request and have a jury trial and if the tenant and that is to determine the possession and the tenant can interpose defenses which are relevant to the question of possession.

Potter Stewart:

And those defenses would mainly be whether or nor he paid the rent (Voice Overlap) would that not be 99%?

Theodore B. Jensen:

That would be a payment of rent or that he has a lease on the property.

He has not been given notice, things of that nature which are relevant to the possession.

Warren E. Burger:

Alright.

We resume after lunch now, Mr. Jensen.[Lunch break]

Mr. Jensen, you may proceed with your argument, you have about 13 minutes remaining.

Theodore B. Jensen:

Mr. Chief Justice and members of the Court.

The Oregon Eviction procedure does not deprive either the tenant or the landlord of the right to assert other claims they may have under the General Court Procedure which is available to all.

In other words, they have open to them the General Court procedure for litigating any other claims that they may have against each other arising out of the rent agreement or the rent contract.

Now, the appellants seem to argue here that all defendants should be treated equally and that it is wrong to have a separate eviction procedure to determine possession of rented property between the landlord and tenant.

In support of that, they compare a mortgage foreclosure case with an FED case under the Oregon Law and then say that since the procedure is different that the tenant defendants in a FED case do not receive equal protection or the same protection as an owner of real property whose mortgages being foreclosed and claim that therefore the eviction or FED procedure is unconstitutional.

Certainly there is a vast difference between the owner of real property who is delinquent in the payment of a mortgage and a tenant who does not pay his rent.

It seems to me, that we certainly would not require a landlord, first to obtain a judgment for the rent and then hold some sort of a judicial sale to evict the tenant, terminating his right to possession of the property perhaps even with some redemption rights following the order have some sort of a strict foreclosure proceeding which would grant the tenant some period of time to pay up his delinquency before the landlord could retake possession of his property from a defaulting tenant.

I submit that the summary eviction procedures justify because of the intending rights existing in a landlord-tenant relationship and the Oregon Eviction Law grants equal protection to all landlord and tenants.

The State of Oregon has the right to establish by legislative enactment a summary procedure to determine the issue of possession between landlords and tenants and that is what it has done with its statute and laws.

Now, I would like to make a comment or two with regard to the amicus curiae briefs that were filed in this case primarily to make the point that the Oregon Eviction Laws do provide due process to tenants in compliance with the United States Constitution.

Theodore B. Jensen:

First of all, we have no self-help provision in Oregon for the landlord as there are in Arkansas and Arizona under their unlawful detainer statutes which require some sort of a bond from the tenant to keep possession prior to trial.

Before the landlord in Oregon can take any steps towards recovering possession he has to file and commence a case in Court under the eviction statute, filing a complaint.

We do not have what is called conspicuous service or so-called sewer service in Oregon as they apparently have in New York and Florida.

Oregon requires personal service or the same service as in any other litigation in the Oregon Courts.

We do not permit an oral complaint as in Kentucky.

Oregon requires a written complaint filed in a summons issue and we permit continuances.

We do not refuse to grant a continuance as in New Hampshire.

Oregon grants a two-day continuance without any cause on request and an unlimited continuance if security posted for the rent which may be found due during the continuance period.

In other words, you can pay rent, pay your current rent and get a 30-day continuance.

In Kentucky, it permits, in amicus curiae brief, there is a statement that there is the trial as before the Court not presided over by judges.

Oregon Courts are all presided over by legally trained judges and jury trial on request.

Oregon does not allow in the FED eviction, the landlord to recover both possessions and judgment of money damages as in the California and New Hampshire States.

In Oregon, if you join the rent claim or any other claim that you have then you have to make the usual service as you would in other cases and it proceeds accordingly.

Oregon in some states in referring primarily to California observed from the amicus curiae brief that they allow the FED, the eviction procedure to be used by the purchaser at an execution mortgage foreclosure to recover possession, I suppose after the sale of the property at sheriff sale, if the former owner does not voluntarily surrender possession of the property.

And they also allow it to be used to recover possession under and after a trustee’s sale under a trustee’s deed to evict the former owner.

Oregon has no such statute.

Our eviction statute is related and confined entirely to the landlord-tenant relationship.

Oregon does not deny defenses to be raised in eviction proceedings as in Arizona.

We permit in Oregon equitable defenses, relevant to the right of possession are allowed.

Oregon does not require a bond to appeal covering the past, present, and future rent as in Vermont and New York.

The bond in Oregon on appeal, the tenant wishes to remain in possession is for twice the rental value only for the period — only for the period from commencement of action to final judgment.

Also, and —

Thurgood Marshall:

What is the purpose of double rent?

Theodore B. Jensen:

The purpose of that is stated in the case of Scales versus Spencer decided by the Oregon Supreme Court in 1967, in which it said that in as much as a final judgment for restitution could not include a judgment for rent, pending appeal, it appears obvious that the legislative purpose for requiring this particular bond on appeal was the guarantee that the rent pending on appeal would be paid.

Thurgood Marshall:

It is double?

Theodore B. Jensen:

That the bond must provide for double the rental value was no doubt intended to prevent frivolous appeals for the purpose of delay.

If there were not some added cost or restriction, every ousted tenant would appeal regardless of the justification.

It can also be assumed that the additional payment would compensate for ways or is in lieu of damages or the unlawful holding over.

Thurgood Marshall:

Is there any other provision in Oregon Law that requires double the amount?

Theodore B. Jensen:

No, there is not Mr. Justice.

Theodore B. Jensen:

If the tenant wants to appeal and remain in possession then the Oregon Eviction Law provides for the double rent bond.

If he surrenders possession and wants to appeal which was done in the Priester-Thrall case which is cited in the briefs, then he does not have to put up the double rent bond.

He would put up the bond provided for in the usual undertaking section of the Oregon statute which would be for —

Thurgood Marshall:

Cost?

Theodore B. Jensen:

Cost and disbursements and any damages that might be incurred in the nature of waste I think.

Thurgood Marshall:

Would you say that that might — the posting of the bond of double the rent might discourage a person from appeal?

Theodore B. Jensen:

I think that it would discourage frivolous appeals and I suppose as the appellants here claiming that —

Thurgood Marshall:

How does Oregon handle other frivolous appeals in other cases?

Theodore B. Jensen:

Well, we have a supersedeas bond which is in damage cases if you want to stay the execution of any judgment or you have to put up a supersedeas bond.

Thurgood Marshall:

But that is only liable to what is actually lost, is it not?

Theodore B. Jensen:

Yes, it is but —

Thurgood Marshall:

But it is double of what is lost?

Theodore B. Jensen:

Yes, our position with regard to that is that to permit the tenant to remain in possession by just continuing to pay just the rent would mean that he could stay in for a year probably or longer depending on how long it took the case to progress through the courts and that would point out that he could do that, if the landlord, now this applies, the eviction procedure applies not just to delinquent rent cases, but it applies where the landlord might want to take the property will say off the market.

Maybe he has other use that he wishes to put to the property to.

Maybe he wants to have it occupied by some member of his own family.

In other words, our position is that there are rights in the landlord in his properties and he is entitled to that protection and if you do not preserve or protect the rights of a landlord then you would be depriving him of his property rights without some due process.

Potter Stewart:

Mr. Jensen, Judge Goodwin in his opinion for this three-judge District Court referred to this appeal on provision as the to quote him “perhaps the most difficult question in this case” and the statute provides for the posting of the bond for double the amount of rent that will accrue pending the appeal.

How can you tell, how much that will be?

How can you tell how long the appeal will take?

How in actual operation does this work?

Theodore B. Jensen:

Well, I do not that you could actually tell.

The Court then would have to set the amount of bond which is what is generally done.

Potter Stewart:

This is sort of making an estimate as to how long the appeal would take and then it is going to be increased or decreased, depending on how fast things go?

Theodore B. Jensen:

Well, generally that is not the case.

It is generally fixed and that goes on in connection with the appeal.

Potter Stewart:

Is there generally just sort of an arbitrary estimate of three months or four months or five months or do you not know?

Theodore B. Jensen:

I am not certain of that because there have not been very many appeals.

William O. Douglas:

What kind of bond is commonly employed?

Theodore B. Jensen:

On other cases?

William O. Douglas:

On this case, this type of case?

Theodore B. Jensen:

What kind of a bond?

William O. Douglas:

It is (Voice Overlap)

Theodore B. Jensen:

It can be — no, it can be a personal —

William O. Douglas:

I know, but —

Theodore B. Jensen:

— or a surety bond.

William O. Douglas:

What kind is usually used in Oregon?

Theodore B. Jensen:

Well, the landlord would have a right to question the sureties or if it is a personal surety and if they could not justify by showing that they have twice the property equal to twice the value of the bond over and above property exempt from execution or then the Court would not approve those sureties.

But it is up to the Court and in many cases the Court the answering party questions, would question the sureties, if they are personal sureties, but that does not mean that he would have a right to discredit them if they qualified.

That would be up to the court.

Potter Stewart:

And if the tenant loses the appeal, does the appellee landlord automatically get payment of the full amount of that?

Theodore B. Jensen:

That is the theory of the eviction statute and the bond.

William O. Douglas:

That is because of the fact that he cannot in the eviction action collect the rent?

Theodore B. Jensen:

That is correct.

He would not collect any rent and he would be being deprived of the possession of the property and it is sort of liquidated damage amount, is the way that it is treated and viewed.

Potter Stewart:

Can it or any decision as to whether or not this can be waived by the Court?

Theodore B. Jensen:

It could be waived by the parties.

I do not believe —

Potter Stewart:

How about by the court, can he –?

Theodore B. Jensen:

— the court it could not — I do not believe the Court would have the right to waive the point of bond.

Potter Stewart:

In view of the explicit statutory bond?

Theodore B. Jensen:

If the tenant surrenders possession or then he can go ahead —

Potter Stewart:

I understand.

Theodore B. Jensen:

(Voice Overlap) appeal.

Thurgood Marshall:

Suppose the Court says that it will be three months and I want you to post three months rent, Bond of twice the value of three months rent and the case is decided in one month, will he get all three of those?

Will he get that whole bond?

Theodore B. Jensen:

No, he would only get the amount which has accrued as I understand it.

Thurgood Marshall:

Whereas the statute?

Theodore B. Jensen:

Up to the time of the termination of the case.

Warren E. Burger:

The statute is cast in terms of double the rent, and therefore, if it was 30 days, he would get double 30 days rent, is that it?

Theodore B. Jensen:

That is my understanding Mr. Chief Justice.

Thurgood Marshall:

That is all he would get?

Theodore B. Jensen:

Yes.

Warren E. Burger:

Thank you Mr. Jensen.

You have four minutes left Mr. Clough.

John H. Clough:

Mr. Chief Justice and may it please the Court.

I have just few comments.

Contrary to the apprehensions here that had been cast, we still need time to prepare for conventional defenses and we still maintain that the two-day time limit as a matter of right is too short to even prepare for those such as to find out the issues as to what rent is agreed to.

They may need witnesses to testify as to whether or not rent is in fact been paid or whether rent receipts are available and in connection with that, the attorney still has to ascertain whether or not there is in fact a valid defense and he needs more time in order to do that.

The third point is regarding the joining of the action for rent and FED under — in our brief at page 48 footnote 13, we have cited two statutory provisions which provide that the action for rent can be joined with an FED, but at that point the case is severed and the action for rent proceeds as any other lawsuit with the FED proceeding close forward.

The fourth point is the — I would refer the Court to plaintiff’s exhibit number 14 which is the letter sent to the Lindseys by the Normet’s attorney.

It speaks for itself regarding whether not it threatens eviction.

Essentially, all that appellants are asking for is a chance to be able to change the law in Oregon.

We do not ask this Court to change any substantive rule of law.

That is for the Courts of Oregon to do and that is for them to use the principles of the common law and develop, we will seek to have them adopt the consumer protection principles that have been analogize to landlord- tenant law in other jurisdictions which they are free to do absent the statute So we are essentially asking for chance.

Warren E. Burger:

Within the framework of this case the issue is I suppose could this statute hypothetically be saved by saying that Oregon was give the same time to answer in these cases as in any other civil action by reference to the particular statute governs that the 10 or 20-day statute?

John H. Clough:

You mean by a construction of the statute?

There is no construction of the statute that the statute is very explicit it says to —

Warren E. Burger:

But you want 10 or 20 days, do you not?

John H. Clough:

Whatever reasonable enough period of time in order to —

Warren E. Burger:

You have conceded earlier this morning that conventional statutory time to answer in actions in Oregon of 10 to 20 days was a reasonable time you were making an argument —

John H. Clough:

Oh! Yes.

Warren E. Burger:

Well, then if you got that, you would be satisfied, would you?

John H. Clough:

On the time limitation.

Warren E. Burger:

I am not suggesting it can be done that way.

I would test whether that is what you want —

John H. Clough:

On the time limitations, that would be true.

Warren E. Burger:

And that would dissolve this whole case?

John H. Clough:

No, it would not dissolve this whole case.

Warren E. Burger:

What else would remain?

John H. Clough:

That the ability to raise defenses would still remain and the double-rent bond on appeal and the continuance bond.

John H. Clough:

Those issues are still in this case no matter what happens to the time limitations because you still have the constrictions of the statute that would apply, no matter whether he had 10 days, 50 days or 2 days.

Potter Stewart:

Do you know how this double-rent bond on appeal actually works in practice?

John H. Clough:

It is an open-ended bond, Mr. Justice.

It is for no specified amount.

It is a virtual impossibility to obtain a surety bond.

Surety bond companies just would not write them.

Potter Stewart:

How many appeals have there been and how many –?

John H. Clough:

We have the Oregon cases that are listed in the brief, Scales v. Spencer and Priester v. Thrall specifically dealing with the double-rent bond on appeal and describe how it operates.

The other types of cases are appeals that have been taken, but quite effectively it does preclude almost any right to appeal and most of those cases involve commercial leases, not residential leases.

Potter Stewart:

Scales against Spencer and what are the others?

John H. Clough:

Scales v. Spencer, Priester v. Thrall involve the double-rent bond on appeal.

Friedenthal v. Thompson involves the time limitations and the ability to raise an equitable defense.

There the equitable defense plus of the nature of asserting oral modification of a subsequent modification of a written lease.

Topco v. Florida, Leathers v. Peterson, Sher v. Williams are similar types of cases, but that is it and Menefee Lumber Company versus Abrams those cases.

Warren E. Burger:

Mr. Clough, did I understand Mr. Jensen to say that equitable — all equitable remedies were available?

John H. Clough:

I believe that is what he has implied, but that is not the case under Oregon Law.

The–

Warren E. Burger:

How do we find that out except by reading those cases, do those cases reveal it?

John H. Clough:

Those cases reveal it and an analysis of the statute.

You see the case — the cases involving raising an equitable, the so-called equitable matter do not operate as a stay per se of the eviction action.

They must then proceed to determine whether or not those, the issues raised would operate to stay.

In other words, the example of Leathers versus Peterson, the question was whether or not there was deed or a mortgage in conveyance of the land near the parties, we are dealing of less than arms length.

There is a question of fraud and the inducement.

Well, if did operate as a mortgage as opposed to a deed then there would not be any validity to using the FED action. There would be another action that would have to be available.

So it goes to item four on the allegations to complaint and that is whether or not the landlord has the right to possession and what we are dealing with is item three which explicitly says, if the rent has not been paid within 10 days after it comes due, that is it.

It is cut-off right there.

He says yes but and no more defenses in the Oregon Courts.

It just seeks if there are chances are.

Warren E. Burger:

Thank you Mr. Clough.

Potter Stewart:

Priester versus Thrall, I cannot the find the list in your brief.

Potter Stewart:

Maybe I am —

Warren E. Burger:

It is listed in the appellee’s brief.

Potter Stewart:

How do you spell Priester, begins with a P?

Warren E. Burger:

Priester, P-R-I-E-S-T-E-R.

Potter Stewart:

Thank you.

Warren E. Burger:

Thank you.

Potter Stewart:

Thank you Mr. Clough and Mr. Jensen.

The case is submitted.