LINDSEY ET AL. v. NORMET ET AL.
No. 70-5045
Supreme Court of the United States
Argued November 15, 1971—Decided February 23, 1972
405 U.S. 56
John H. Clough argued the cause for appellants. With him on the briefs was Myron Moskovitz.
Theodore B. Jensen argued the cause for appellee Normet. With him on the briefs was Donald J. DeFrancq.
Briefs of amici curiae urging reversal were filed by Delane C. Carpenter for the Pima County Bar Assn.; by Howard W. Dixon, Bruce S. Rogow, and Steven Rappaport for Legal Services of Greater Miami, Inc.; by Helen S. White and Gerald D. McGonigle for New Hampshire Legal Assistance; by W. J. Michael Cody III for Memphis and Shelby County Legal Services Assn., Inc.; by Elizabeth M. Brooks for June Brooks; by Paul L. McKaskle for Western Center on Law and Poverty; by Martin R. Glenn and John G. O‘Mara for Legal Aid Society of Louisville; by Andrea M. Alcarese for Legal
MR. JUSTICE WHITE delivered the opinion of the Court.
This case presents the question of whether Oregon‘s judicial procedure for eviction of tenants after nonpayment of rent violates either the Equal Protection Clause or the Due Process Clause of the
The material facts were stipulated. Appellants were the month-to-month tenants of appellee Normet1 and paid $100 a month for the use of a single-family residence in Portland, Oregon. On November 10, 1969, the City Bureau of Buildings declared the dwelling unfit for habitation due to substandard conditions on the premises.2 Appellants requested appellee to make certain repairs which, with one minor exception, appellee refused to do. Appellants, who had paid the November rent, refused to
On January 7, 1970, however, before statutory eviction procedures were begun in the Oregon courts, appellants filed suit in federal district court under
I
The Oregon Forcible Entry and Wrongful Detainer Statute establishes a procedure intended to insure that any entry upon real property “shall be made in a peaceable manner and without force.”
Appellants’ principal attacks8 are leveled at three characteristics of the Oregon FED Statute: the requirement of a trial no later than six days after service of the complaint unless security for accruing rent is provided; the provisions of
II
We are unable to conclude that either the early-trial provision or the limitation on litigable issues is invalid on its face under the Due Process Clause of the
Nor does Oregon deny due process of law by restricting the issues in FED actions to whether the tenant has paid rent and honored the covenants he has assumed, issues that may be fairly and fully litigated under the Oregon procedure. The tenant is barred from raising
“Due process requires that there be an opportunity to present every available defense.” American Surety Co. v. Baldwin, 287 U. S. 156, 168 (1932). See also Nickey v. Mississippi, 292 U. S. 393, 396 (1934). Appellants do not deny, however, that there are available procedures to litigate any claims against the landlord cognizable in Oregon. Their claim is that they are denied due process of law because the rental payments are not suspended while the alleged wrongdoings of the landlord are litigated.12 We see no constitutional barrier to Ore-
The Court has twice held that it is permissible to segregate an action for possession of property from other actions arising out of the same factual situation that may assert valid legal or equitable defenses or counter-claims. In Grant Timber & Mfg. Co. v. Gray, 236 U. S. 133 (1915) (Holmes, J.), the Court upheld against due process attack a Louisiana procedure that provided that a defendant sued in a possessory action for real property could not bring an action to establish title or present equitable claims until after the possessory suit was
Underlying appellants’ claim is the assumption that they are denied due process of law unless Oregon recognizes the failure of the landlord to maintain the premises as an operative defense to the possessory FED action and as an adequate excuse for nonpayment of rent. The Constitution has not federalized the substantive law of landlord-tenant relations, however, and we see nothing to forbid Oregon from treating the undertakings of the tenant and those of the landlord as independent rather than dependent covenants. Likewise, the Constitution does not authorize us to require that the term of an otherwise expired tenancy be extended while the tenant‘s damage claims against the landlord are litigated. The substantive law of landlord-tenant relations differs
III
We also cannot agree that the FED Statute is invalid on its face under the Equal Protection Clause. It is true that Oregon FED suits differ substantially from other
The statute potentially applies to all tenants, rich and poor, commercial and noncommercial; it cannot be faulted for over-exclusiveness or under-exclusiveness. And classifying tenants of real property differently from other tenants for purposes of possessory actions will offend the equal protection safeguard “only if the classification rests on grounds wholly irrelevant to the achievement of the State‘s objective,” McGowan v. Maryland, 366 U. S. 420, 425 (1961), or if the objective itself is beyond the State‘s power to achieve, Gomillion v. Lightfoot, 364 U. S. 339 (1960); NAACP v. Alabama, 377 U. S. 288 (1964); Douglas v. California, 372 U. S. 353 (1963). It is readily apparent that prompt as well as peaceful resolution of disputes over the right to possession of real property is the end sought by the Oregon statute.18 It is also clear that the provisions for early trial and simplification of issues are closely related to that purpose. The equal protection claim with respect to these pro-
At common law, one with the right to possession could bring an action for ejectment, a “relatively slow, fairly complex, and substantially expensive procedure.”19 But, as Oregon cases have recognized, the common law also permitted the landlord to “enter and expel the tenant by force, without being liable to an action of tort for damages, either for his entry upon the premises, or for an assault in expelling the tenant, provided he uses no more force than is necessary, and do[es] no wanton damage.” Smith v. Reeder, 21 Ore. 541, 546, 28 P. 890, 891 (1892). The landlord-tenant relationship was one of the few areas where the right to self-help was recognized by the common law of most States, and the implementation of this right has been fraught with “violence and quarrels and bloodshed.” Entelman v. Hagood, 95 Ga. 390, 392, 22 S. E. 545 (1895).20 An alternative legal remedy to prevent such breaches of the peace has appeared to be an overriding necessity to many legislators and judges.
Hence, the Oregon statute was enacted in 1866 to alter the common law and obviate resort to self-help and violence. The statute, intended to protect tenants as well as landlords, provided a speedy, judicially super-
“But if [the landlord] forcibly enter and expel the tenant, while he may not be liable to him in an action of tort, he is guilty of a violation of the forcible entry and detainer act, which is designed to protect the public peace; and in such case the law will award restitution to the tenant, not because it recognizes any rights in him, but for the reason that out of regard for the peace and good order of society it does not permit a person in the quiet and peaceable possession of land to be disturbed by force, even by one lawfully entitled to the possession.” Smith v. Reeder, 21 Ore., at 546-547, 28 P., at 891.
Before a tenant is forcibly evicted from property the Oregon statute requires a judicial determination that he is not legally entitled to possession. “The action of forcible entry and detainer is intended for the benefit of him whose possession is invaded.” Taylor v. Scott, 10 Ore. 483, 485 (1883). The objective of achieving rapid and peaceful settlement of possessory disputes between landlord and tenant has ample historical explanation and support. It is not beyond the State‘s power to implement that purpose by enacting special provisions applicable only to possessory disputes between landlord and tenant.
There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the
Appellants argue, however, that a more stringent standard than mere rationality should be applied both to the challenged classification and its stated purpose. They contend that the “need for decent shelter” and the “right to retain peaceful possession of one‘s home” are fundamental interests which are particularly important to the poor and which may be trenched upon only after the State demonstrates some superior interest. They invoke those cases holding that certain classifications based on unalterable traits such as race21 and lineage22 are inherently suspect and must be justified by some “overriding statutory purpose.” They also rely on cases where classifications burdening or infringing constitutionally protected rights were required to be justified as “necessary to promote a compelling governmental interest.”23
Since the purpose of the Oregon Forcible Entry and Wrongful Detainer Statute is constitutionally permissible and since the classification under attack is rationally related to that purpose, the statute is not repugnant to the Equal Protection Clause of the
IV
We agree with appellants, however, that the double-bond prerequisite for appealing an FED action violates their right to the equal protection of the laws. To appeal a civil case in Oregon, the ordinary litigant must file an undertaking, with one or more sureties, covering “all damages, costs and disbursements which may be awarded against him on the appeal.”
but such undertaking does not stay the proceedings, unless the undertaking further provides to the effect following:
“(b) If the judgment or decree appealed from is for the recovery of the possession of real property, for a partition thereof, or the foreclosure of a lien thereon, that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if such judgment or decree or any part thereof is affirmed, the appellant will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof, not exceeding the sum therein specified, to be ascertained and tried by the court or judge thereof.
“(2) When the decree appealed from requires the execution of a conveyance or other instrument, execution of the decree is not stayed by the appeal, unless the instrument is executed and deposited with the clerk within the time allowed to file the undertaking, to abide the decree of the appellate court.
“(3) If the appeal is dismissed, the judgment or decree, so far as it is for the recovery of money, may, by the appellate court, be enforced against the sureties in the undertaking for a stay of proceedings, as if they were parties to the judgment or decree.”
An FED action may be brought in the circuit court, the district court, or before a justice of the peace.
the premises “from the commencement of the action in which the judgment was rendered until final judgment in the action.”
“Inasmuch 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 to guarantee that the rent pending an appeal would be paid. 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 waste or is in lieu of damages for the unlawful holding over.”
We have earlier said that Oregon may validly make special provision for the peaceful and expeditious settlement of disputes over possession between landlord and tenant and that the early-trial and continuance bond provisions of the FED statute rationally implement that purpose because the tenant‘s right to possession beyond the initial six-day period is conditioned on securing the landlord against the loss of accruing rent. Similar conditions on the tenant‘s right to appeal, such as those imposed by
This Court has recognized that if a full and fair trial on the merits is provided, the Due Process Clause of the
It cannot be denied that the double-bond requirement heavily burdens the statutory right of an FED defendant to appeal. While a State may properly take steps to insure that an appellant post adequate security before an appeal to preserve the property at issue, to guard a damage award already made, or to insure a landlord against loss of rent if the tenant remains in possession, the double-bond requirement here does not effectuate these purposes since it is unrelated to actual rent accrued or to specific damage sustained by the landlord. This requirement is unnecessary to assure the landlord payment of accrued rent since the undertaking an FED defendant must file pursuant to the general appeal bond statute,
We do not question here reasonable procedural provisions to safeguard litigated property, cf. National Union of Marine Cooks & Stewards v. Arnold, 348 U. S. 37 (1954), or to discourage patently insubstantial appeals, if these rules are reasonably tailored to achieve these ends and if they are uniformly and nondiscriminatorily applied. Moreover, a State has broad authority to provide for the recovery of double or treble damages in cases of illegal conduct that it regards as particularly reprehensible, even though posting an appeal bond by an appellant will be doubly or triply more difficult than it otherwise would be. In the case before us, however, the
The judgment of the District Court is
Affirmed in part and reversed in part.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, dissenting in part.
I
I agree with the Court that the double-bond provision in the Oregon eviction statute denies tenants who are affected by forcible entry and wrongful detainer pro
The ordinary or customary litigant who appeals must file a bond with one or more sureties covering “all damages, costs and disbursements which may be awarded against him on the appeal.”1 To obtain a stay of execution pending the appeal the undertaking must also provide: (1) if the suit is for recovery of money or personal property (or its value), that the appellant will satisfy the claim if he loses the appeal and (2) if the judgment is for the recovery of possession of real property, for a partition or for the foreclosure of a lien, that during possession the appellant will not commit waste and that if he loses the appeal, he will pay the value of the use of the property during the appeal.
By contrast, if a tenant in an FED action appeals, he must give “in addition to the undertaking now required by law upon appeal”2 an undertaking with two sureties for payment of twice the rental value of the premises from the commencement of the action until final judgment.
The more onerous requirement placed on tenants is said to be a guarantee that rent pending appeal will be paid. Scales v. Spencer, 246 Ore. 111, 424 P. 2d 242. Yet the general appeal statute would give that protection.3
It is said that the landlord deserves protection for waste or damages pending appeal. Ibid. But that protection is also provided under the general appeal statute.
It is said that a double-rent bond protects the landlord against possible waste or damage which occurs prior to, not during, the appeal. But the same reason would be germane to waste or damage in other suits brought to obtain possession of property. Drawing the line between the present suits to obtain possession and other suits and saddling tenants with double-rent bonds but not saddling other owners with such bonds seems to me obviously an invidious discrimination.
It is said that the double-rent bond is designed to prevent frivolous appeals taken for the sole purpose of delaying eviction as long as possible. Ibid. Yet frivolous appeals could as well be taken by defendants whose lien is being foreclosed and who desire to remain in possession. It is an invidious discrimination at which the Equal Protection Clause is aimed for a legislature to select one class of appellants who seek to retain possession of property and place a more onerous condition on their right to appeal than is placed on other like appellants.
In sum, the double-bond procedure is landlord legislation, not evenly weighted between his proprietary interest in the property and the rights of the tenants. Over a third of our population lives in apartments or other rented housing.4 The home—whether rented or
Modern man‘s place of retreat for quiet and solace is the home. Whether rented or owned, it is his sanctuary. Being uprooted and put into the street is a traumatic experience. Legislatures can, of course, protect property interests of landlords. But when they weight the scales as heavily as does Oregon for the landlord and against the fundamental interest of the tenant they must be backed by some “compelling . . . interest,” Kramer v. Union School District, 395 U. S. 621, 627. No such “compelling . . . interest” underlies this statutory scheme.
The double-rent bond required of tenants, but not required of others in possession of real property, is properly held to be unconstitutional by reason of the Equal Protection Clause of the
II
I cannot agree, however, that the remainder of Oregon‘s FED Statute satisfies the requirements of due process of law.
This is a most appropriate occasion to honor that tradition. While there are occasional appropriate cases for abstention (see Reetz v. Bozanich, 397 U. S. 82), this Court‘s abstention doctrine that requires litigants to start all over again in a state court after having financed their course all the way to this Court is likely to exhaust only the litigants.
This all-Oregon panel said on the abstention issue:
“It is unlikely that an application of state law would change the posture of the federal constitutional issues. No state administrative process is involved. The case has been thoroughly briefed and argued on the merits, and is presented on a clear and complete record. It is ripe for decision. Only one appeal (to the United States Supreme Court) will now be needed to settle the federal constitutional question. While the state courts are also capable of
applying the United States Constitution to a challenged state law, two levels of appeal would be needed in an F. E. D. case within the state system. A final state-court decision would still not necessarily settle the federal constitutional question. “Closely related to the time element is economy. Cases of this sort tax both courts and counsel. Until finally resolved, these cases produce expense, uncertainty, and frustration. Delay produces no balancing benefit, either of comity or of clarity in state-federal relations.”
Agreeing with that view, I come to the remaining constitutional issues.
In my view, there are defects in the Oregon procedures which go to the essence of a litigant‘s right of access to the courts, whether he be rich or poor, black or white.
The problem starts with Judge Wright‘s statement in Javins v. First National Realty Corp., 138 U. S. App. D. C. 369, 372, 428 F. 2d 1071, 1074:
“When American city dwellers, both rich and poor, seek ‘shelter’ today, they seek a well known package of goods and services—a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.”
This vital interest that is at stake may, of course, be tested in so-called summary proceedings. But the requirements of due process apply and due process entails the right “to sue and defend in the courts,” a right we have described as “the alternative of force” in an organized society. Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142, 148. In essence the question comes down to notice and an opportunity to defend. Armstrong v. Manzo, 380 U. S. 545; Mullane v. Central Hanover Trust Co., 339 U. S. 306.
For slum tenants—not to mention the middle class—this kind of summary procedure usually will mean in actuality no opportunity to be heard. Finding a lawyer in two days, acquainting him with the facts, and getting necessary witnesses make the theoretical opportunity to be heard and interpose a defense a promise of empty words. It is, indeed, a meaningless notice and opportunity to defend. The trial is likely to be held in the presence of only the judge and the landlord and the landlord‘s attorney.8
Moreover, even for tenants who have been lucky to find a lawyer, the landlord need only plead9 and prove10 the following items in order to win a judgment: (1) a description of the premises, (2) that the defendant is in possession of the premises, (3) that he entered upon them “with force,” or unlawfully holds them “with force,”11 and (4) that the plaintiff is entitled to possession.
Affirmative defenses such as the failure of the landlord to make repairs or that the motivation for the eviction was retaliation for a report by the tenant of a violation of a housing code are apparently precluded. This reflects the ancient notion that a lease is a conveyance of an “estate in land,” in which the respective covenants—a tenant‘s to pay rent, the landlord‘s to repair—were deemed independent of each other. This approach was appropriate in the feudal culture in which property law evolved.12 But this feudal notion of landlord-tenant law—rooted in the special needs of an agrarian society—has not been a realistic approach to
The Housing Code of Portland, Oregon, has as its declared purpose the protection of the life, health, and welfare of the public and of the owners and occupants of residential buildings.15 It forbids anyone to use or permit a building to be used in violation of its provisions. Id., § 8-204.
Notes
“FORCIBLE ENTRY AND WRONGFUL DETAINER
“105.105 Entry to be lawful and peaceable only. No person shall enter upon any land, tenement or other real property unless the right of entry is given by law. When the right of entry is given by law the entry shall be made in a peaceable manner and without force.
“105.110 Action for forcible entry or wrongful detainer. When a forcible entry is made upon any premises, or when an entry is made in a peaceable manner and possession is held by force, the person entitled to the premises may maintain in the county where the property is situated an action to recover the possession thereof in the circuit court, district court or before any justice of the peace of the county.
“105.115 Causes of unlawful holding by force. The following are causes of unlawful holding by force within the meaning of ORS 105.110 and 105.125:
“(1) When the tenant or person in possession of any premises fails or refuses to pay rent within 10 days after it is due under the lease or agreement under which he holds, or to deliver possession of the premises after being in default on payment of rent for 10 days.
“(2) When the lease by its terms has expired and has not been renewed, or when the tenant or person in possession is holding from month to month, or year to year, and remains in possession after notice to quit as provided in ORS 105.120, or is holding contrary to any condition or covenant of the lease or is holding possession without any written lease or agreement.
“105.120 Notice necessary to maintain action in certain cases; waiver of notice; effect of advance payments of rent. (1) An action for the recovery of the possession of the premises may be maintained in cases provided in subsection (2) of ORS 105.115, when the notice to terminate the tenancy or to quit has been served upon the tenant or person in possession in the manner prescribed by ORS 91.110 and for the period prescribed by ORS 91.060 to 91.080 before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case such notice must be served for a period of 90 days before the commencement of the action.
“(2) Any person entering into the possession of real estate under written lease as the tenant of another may, by the terms of his lease, waive the giving of any notice required by this section.
“(3) The service of a notice to quit upon a tenant or person in possession does not authorize an action to be maintained against him for the possession of premises before the expiration of any period for which the tenant or person has paid the rent of the premises in advance.
“105.125 Complaint. In an action pursuant to ORS 105.110 it is sufficient to state in the complaint:
“(1) A description of the premises with convenient certainty;
“(2) That the defendant is in possession of the premises;
“(3) That he entered upon the premises with force or unlawfully holds the premises with force; and
“(4) That the plaintiff is entitled to the possession of the premises.
“105.130 How action conducted. Except as provided in ORS 105.135 to 105.160, an action pursuant to ORS 105.110 shall be conducted in all respects as other actions in courts of this state.
“105.135 Service and return of summons. The summons shall be served and returned as in other actions. The service shall be not less than two or more than four days before the day of trial appointed by the court.
“105.140 Continuance. No continuance shall be granted for a longer period than two days unless the defendant applying therefor gives an undertaking to the adverse party with good and sufficient security, to be approved by the court, conditioned for the payment of the rent that may accrue if judgment is rendered against the defendant.
“105.145 Judgment on trial by court. If the action is tried by the court without a jury, and after hearing the evidence it concludes that the complaint is not true, it shall enter judgment against the plaintiff for costs and disbursements. If the court finds the complaint true or if judgment is rendered by default, it shall render a general judgment against the defendant and in favor of the plaintiff, for restitution of the premises and the costs and disbursements of the action. If the court finds the complaint true in part, it shall render judgment for the restitution of such part only, and the costs and disbursements shall be taxed as the court deems just and equitable.
“105.150 Verdict and judgment on trial by jury. If the action is tried by a jury and they find the complaint true, they shall render a general verdict of guilty against the defendant; if not true, they shall render a general verdict of not guilty; if true in part, they shall render a verdict setting forth the facts they find, and the court shall render judgment according to the verdict.
“105.155 Form of execution. The execution, should judgment of restitution be rendered, may be in the following form:
State of Oregon,
County of _________ ) ss.
To the sheriff or any constable of the county:
Whereas, a certain action for the forcible entry and detention, (or the forcible detention) of the following described premises, to wit: ___________, lately tried before the above entitled court, wherein ________ was plaintiff and ________ was defendant, judgment was rendered on the _____ day of ________, A. D., _____, that the plaintiff ________ have restitution of the premises, and also that he recover the costs and disbursements in the sum of $_____;
In the name of the State of Oregon, you are, therefore, hereby commanded to cause the defendant and his goods and chattels to be forthwith removed from the premises and the plaintiff is to have restitution of the same. In the event the goods and chattels are not promptly removed thereafter by the defendant you are authorized and empowered to cause the same to be removed to a safe place for storage. You are also commanded to levy on the goods and chattels of the defendant, and make the costs and disbursements, aforesaid, and all accruing costs, and to make legal service and due return of this writ.
Witness my hand and official seal (if issued out of a court of record) this _____ day of ________, A. D., _____.
____________________________________
Justice of the peace, or clerk
of the district or circuit court.
“105.160 Additional undertaking on appeal. If judgment is rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from the judgment until he gives, in addition to the undertaking now required by law upon appeal, an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff if the judgment is affirmed on appeal of twice the rental value of the real property of which restitution is adjudged from the commencement of the action in which the judgment was rendered until final judgment in the action.”
The general appeal statute (“If anything, the obligation ran the other way, because an intentional or grossly negligent destruction of buildings on the premises might be construed as waste by the tenant. Thus, from its very beginning, the obligation to repair went hand in hand with control. Since the landlord gave up control over the premises for the stated term of years of the leasehold, during that term whatever the obligation to repair would rest on the temporary owner, the tenant, rather than on the holder of the reversionary interest, the owner of the fee. Initially, the dependence of the obligation to repair on the capacity to control was retained and applied to non-rural housing as well.” Legal Remedies for Housing Code Violations, National Commission On Urban Problems, Research Report No. 14, pp. 110-111 (1968).
We do not know what Oregon would hold if a lease in violation of a housing code was before it in an FED case. But if the lease is a contract, then the opportunity to be heard would certainly embrace the issue of legality, if due process is to have any real significance. Oregon‘s statutory FED scheme is plainly to protect landlords against loss of rental income during lengthy litigation. See Menefee Lumber Co. v. Abrams, 138 Ore. 263, 5 P. 2d 709; Friedenthal v. Thompson, 146 Ore. 640, 31 P. 2d 643. But that is no justification for denial to tenants of due process, as there are other less drastic devices for protecting the landlord. Judge Wright in the Javins case, 138 U. S. App. D. C., at 381 n. 67, 428 F. 2d, at 1083 n. 67, proposed “an excellent protective procedure” in the form of a requirement that the tenant, who raises an affirmative defense based on housing code violations or other discriminatory landlord practices, pay rent into court as it became due.16 See also Bell v. Tsintolas Realty Co., 139 U. S. App. D. C. 101, 430 F. 2d 474. The District Court in the present case employed a similar procedure.
Appellees assert that the affirmative defenses mentioned are not relevant to the issues posed under Oregon‘s FED Act. They represent to us that the Oregon judges at the trial level have usually held that such defenses are not relevant, though the Oregon Supreme Court has not considered the question. What Oregon will hold or should hold is not the issue. Since, however, Oregon holds that a lease is a contract, all defenses
The Court suggests that landlord-tenant law raises no federal questions. This is not quite so clear to me. We have held that the right to complain to public authorities is constitutionally protected. In re Quarles, 158 U. S. 532. If a defendant in an FED action is denied the right to assert as a defense the claim that he is being evicted, not for the nonpayment of rent, but because he exercised his constitutional right to complain to public officials about the disrepair of his apartment, a substantial federal question would be presented. See Edwards v. Habib, 130 U. S. App. D. C. 126, 129-137, 397 F. 2d 687, 690-698 (1968).
The Court also implies that to find for appellants in this case, we would have to hold, as a matter of constitutional law, that a lease is required to be interpreted as an ordinary contract. But this is not at all necessary. Oregon has already adopted the modern, contractual view of leasehold analysis. The issue that confronts the Court is not whether such a view is constitutionally compelled, but whether, once Oregon has gone this far as a matter of state law, the requirements of due process permit a restriction of contract-type defenses in an FED action. Cf. Shapiro v. Thompson, 394 U. S., at 627 n. 6; Sherbert v. Verner, 374 U. S. 398, 404-406.
Normally a State may bifurcate trials, deciding, say, the right to possession in one suit and the right to damages in another. See Bianchi v. Morales, 262 U. S. 170; American Surety Co. v. Baldwin, 287 U. S. 156.
But where the right is so fundamental as the tenant‘s claim to his home, the requirements of due process should be more embracing. In the setting of modern urban
Bianchi v. Morales, supra, which sanctioned the bifurcated trial in the rural setting of Puerto Rico, where the contest was between mortgagor and mortgagee, would be an insufferable addition to the law of the modern ghetto.
A judgment obtained by the landlord, whether by default or otherwise, gives him the right to levy on the goods of the tenant to recover the costs and disbursements of the suit.17 Moreover, any past waste or damages, which are covered by the appeal bond, are not an issue in litigation in FED cases. As noted, the issues in Oregon FED cases are limited and the proceedings summary. Making the tenant liable for past waste or damage through the device of an appeal bond when he has no real opportunity to defend is a manifest denial of due process.
I dissent from an affirmance of this judgment.
MR. JUSTICE BRENNAN, dissenting in part.
In my view the District Court erred in declining to apply the doctrine of abstention with respect to the availability of defenses in FED actions.* The issue
The Court‘s opinion exposes the fallacy of the District Court‘s conclusion that Oregon law is “clear” and that “[i]t is unlikely that an application of state law would change the posture of the federal constitutional issues.” App. 73. For the Court cites Oregon decisions that have recognized certain equitable defenses in FED actions, ante, at 66 n. 11, and can only conjecture that the defenses appellants sought to raise are “apparently” not in this category. We cannot confidently say, therefore, how the Oregon courts would treat appellants’ defenses, if available at all, when asserted in an FED suit, or how, if those defenses are available in FED suits, the Oregon courts would apply the requirement of a trial no later than six days after service of process. Clearly, therefore, the Oregon law is susceptible of a “construction by the state courts that would avoid or modify the constitutional question.” Zwickler v. Koota, 389 U. S. 241, 249 (1967); Reetz v. Bozanich, 397 U. S. 82 (1970). In these circumstances the District Court should have remitted appellants to the Oregon courts for an authoritative interpretation of Oregon law in
I would vacate the judgment of dismissal and remand with direction to the District Court (1) to enter judgment declaring that the double-bond requirement of
“Q: If you didn‘t have that deposit in escrow [rent paid by tenants during litigation], might you not be confronted with a counter-suggestion that this is a taking of property without due process, without compensation?
“Mr. Clough: Of course; that is correct.
“Q: But you would accept that as an invariable condition to maintaining possession?
“Mr. Clough: Yes, we‘d have no problem with that.” Tr. of Oral Arg. 14.
“The legal rules pertaining to the repair of leaseholds became wholly unreal and anachronistic with increasing urbanization during the 19th century, with the increasing reliance on multi-unit rental property, such as tenement houses, to provide shelter for the urban areas’ growing industrial labor population. In an agrarian setting it made sense to require the tenant to keep in good repair an entire dwelling house he had rented from an owner. On the other hand, to require a relatively transient tenant to assume the obligation of repair in a multi-unit building or in a tenement house with respect to his rooms and with respect to plumbing, heating, and other fixtures that were interconnected with other parts and fixtures in the building made no sense at all.” Id., at 111-112.“No continuance shall be granted for a longer period than two days unless the defendant applying therefor gives an undertaking to the adverse party with good and sufficient security, to be approved by the court, conditioned for the payment of the rent that may accrue if judgment is rendered against the defendant.”
“19.040 Form of undertaking on appeal; conditions for stay of proceedings; enforcement against sureties on dismissal of appeal. (1) The undertaking of the appellant shall be given with one or more sureties, to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal;