Plaintiff participated in Baltimore's Housing Choice
Voucher Program, commonly known as the Section 8 program, which provides
vouchers to low–income families to help pay for housing. This program is
administered by the Department of Housing and Urban Development and through
local public housing agencies, such as the Housing Authority of Baltimore City.
Housing and Urban Development and the Housing Authority
of Baltimore City each require an informal hearing when a participant's
benefits are terminated. More specifically, the following must be provided:
- prompt written notice of the reasons for termination, and the right to a hearing;
- an opportunity for discovery of relevant documents;
- the right to counsel or another representative at the hearing;
- the opportunity to present evidence and question witnesses; and
- a written decision following the hearing.
See 24 C.F.R. § 982.555(e).
On June 16, 2010, the Housing Authority of Baltimore
City notified Plaintiff that it intended to terminate her participation in
the program because she damaged several rental properties. Plaintiff
retained counsel who propounded discovery requests to Defendant Housing
Authority of Baltimore City. Additionally, Plaintiff advised that she
intended to bring a court reporter to the hearing to preserve the record for
appeal. The Housing Authority of Baltimore City replied that it does not
allow recordings of the termination hearing. This prompted Plaintiff's suit
for declaratory judgment and injunctive relief and a request for a temporary
restraining order requiring the Housing Authority of Baltimore City to
permit the hearing to move forward as recorded.
Pursuant to Federal Rule of Civil Procedure 65(b), a
party requesting a temporary restraining order must show:
- a likelihood of success on the merits;
- likelihood of irreparable harm absent preliminary relief;
- the balance of equity tips in the requesting party's favor; and
- an injunction is in the public interest.
With regard to the first prong, likelihood of success
on the merits, Plaintiff presented two arguments. First she argued that her
due process rights under the Fourteenth Amendment would be violated without
a recording of the hearing. Plaintiff argued that termination of Section 8
benefits is a deprivation of property, for which she is entitled to due
process. Without a recording of the termination hearing, Plaintiff would not
be able to challenge adequately an adverse decision.
The Court cited Caulder v. Durham Housing Authority,
433 F.2d 998 (4th Cir. 1970). In Caulder, the Fourth Circuit established the
due process requirement for termination of benefits by a housing authority.
These requirements included notice of the proposed termination, an
opportunity to confront and cross-examine witnesses, the right to be
represented by counsel, a written decision, and an impartial decisionmaker.
The opinion is silent on whether a hearing must be recorded in order to
protect the tenant's due process rights. Therefore, the Court found that
Plaintiff's request for a recorded hearing is merely a request for an
extension of the protections afforded by Caulder.
Plaintiff's second argument relating to the likelihood
of success on the merits of her claim is that her right to free speech under
the First Amendment will be infringed without a recorded proceeding.
Specifically, Plaintiff argued that a prohibition on the recording of the
hearing is an unlawful prior restraint and a frustration of the public's
access to the court proceedings. The Court found to the contrary. The
restriction on the hearing does not prohibit note taking and does not
otherwise interfere with the public's right of access to the hearing.
Although the hearing may not be recorded verbatim, there is no requirement
that a hearing must be recorded in order to satisfy the First Amendment.
Accordingly, the first argument was not persuasive.
The Court denied Plaintiff's request for a temporary
restraining order that would allow her to record the termination proceedings
held by the Housing Authority of Baltimore City. Plaintiff was not able to
satisfy the first element of the temporary restraining order test, namely a
likelihood of success on the merits.
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