The appeal, involving the issue whether a Connecticut statutory requirement that tenants wishing to appeal from an eviction judgment must post a bond offends the Due Process or Equal Protection Clause if applied to foreclose appellate review for indigent tenants, is dismissed, as the record is ambiguous regarding the underlying reason appellants were denied an opportunity to appeal the eviction judgment.
5 Conn. Cir. 282, 250 A. 2d 527, dismissed.
Francis X. Dineen argued the cause for appellants. With him on the brief was Joanne S. Faulkner.
F. Michael Ahern, Assistant Attorney General, argued the cause for the State of Connecticut as amicus curiae in support of appellee. With him on the brief were Robert K. Killian, Attorney General, and Robert L. Hirtle, Jr., Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, Theodore L. Sendak of Indiana, Kent Frizzell of Kansas, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, A. F. Summer of Mississippi, Robert Morgan of North Carolina, Paul W. Brown of Ohio, George F. McCanless of Tennessee, Vernon B. Romney of Utah, and James E. Barrett of Wyoming; and by Peter J. O'Dea, Attorney General of the Virgin Islands.
Briefs of amici curiae urging reversal were filed by the Center on Social Welfare Policy and Law et al. and by the National Legal Aid and Defender Association. [399 U.S. 510, 511]
We noted probable jurisdiction in this case to decide whether 52-542 of the Connecticut General Statutes 1 requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offends either the Due Process or Equal Protection Clause of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post the bond, 394 U.S. 957 (1969).
Because of an ambiguity in the record concerning the underlying reason these appellants were denied an opportunity to appeal the trial court's judgment ordering that they be evicted, we now conclude that this appeal should be dismissed, DeBacker v. Brainard, 396 U.S. 28 (1969); Rescue Army v. Municipal Court, 331 U.S. 549 (1947).
After unsuccessfully litigating in the trial court a summary eviction proceeding begun by their landlords, appellants [399 U.S. 510, 512] moved in the trial court for a waiver of the bond requirement so that they might appeal. The trial court, apparently of the view that it had the power to waive the statutory bond requirement in an appropriate case, denied appellants' motion on a finding that "this appeal is being taken for the purpose of delay." App. 23. Appellants sought review of the trial court's denial of their motion in the Connecticut Circuit Court, and that court denied review and dismissed appellants' appeal. It is unclear from that court's opinion, however, whether it thought the bond requirement of 52-542 left no room for a waiver, 2 or instead based its refusal to hear appellants' appeal in part on the trial court's finding - cited in the Circuit Court's opinion 3 - that the appeal [399 U.S. 510, 513] before it was taken only for purpose of delay. 5 Conn. Cir. 282, 250 A. 2d 527 (1968). Appellants' petition to the Supreme Court of Connecticut to certify the case for review was declined.
In these circumstances, we deem it inappropriate for this Court to decide the constitutional issue tendered by appellants.
[ Footnote 2 ] The opinion states in one place that "[a] sufficient bond with surety is essential to a valid appeal." 5 Conn. Cir. 282, 285, 250 A. 2d 527, 529 (1968). The court also said that "[w]ant of bond with surety, where bond with surety is by statute a prerequisite of review, furnishes a sufficient ground of dismissal of the appeal." Id., at 288, 250 A. 2d, at 531. At oral argument here, however, the State of Connecticut, appearing as amicus curiae, contended that the statutory bond requirement could, in an appropriate case, be waived. The opinion of the Circuit Court did not expressly pass on this issue, which it appears was not settled under Connecticut law at the time of its decision. A subsequent decision of a Connecticut circuit court suggests that the bond requirement is an absolute and necessary condition for an appeal, but it too did not consider the waiver contention made by the State before this Court, see Housing Authority v. Jones, 5 Conn. Cir. 350, 252 A. 2d 465 (1968). Moreover, this decision did not consider the effect of the 1969 amendment to 52-542, see n. 1, supra.
[ Footnote 3 ] The opinion states in another place:
This was a summary procedure brought by a landlord 1 to obtain possession from his tenants for nonpayment of rent. The trial court found for the landlord and the tenants appealed.
Connecticut law requires one taking an appeal in such an action to post a bond with surety. The tenants showed they were financially unable to post the bond and claimed that to require a bond with surety to obtain an appeal would under those circumstances be a denial of equal [399 U.S. 510, 514] protection. The trial court refused to waive the requirement for a bond with surety saying that "the appeal is being taken for the purpose of delay."
The Circuit Court affirmed. The Appellate Division ordered the termination of a stay of execution. 5 Conn. Cir. 282, 250 A. 2d 527. The Supreme Court denied certification.
I would reverse this judgment. A rich tenant, whatever his motives for appeal, would obtain appellate review. These tenants, because of their poverty, obtain none. I can imagine no clearer violation of the requirement of equal protection unless it be Griffin v. Illinois, 351 U.S. 12 . Whether the case is criminal or civil, wealth, like race, is a suspect criterion for classification of those who have rights and those who do not. Harper v. Virginia Bd. of Elections, 383 U.S. 663 ; Lee v. Habib, 137 U.S. App. D.C. 403, 424 F.2d 891. 2 [399 U.S. 510, 515]
What the merits of the tenants' appeal may be is not for us to say. But the appeal raised questions not easily answered. The terms of the lease stated that it could be terminated by not less than 30 days' notice, while apparently no more than five days' notice was given. A housing authority that is federally assisted has the right by 42 U.S.C. 1404a (1964 ed., Supp. V), "to maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action is authorized by the statute or regulations under which such housing accommodations are administered." There is not a word in appellee's argument that indicates that the federal regulations permit eviction on five days' notice where the lease requires 30 days' notice.
The case has been argued as if appellants are "cheapskates" seeking to get something for nothing. That simply is not true, for the record shows:
[ Footnote 1 ] Appellee operates a federally assisted low-rent housing project under the authority of Title V of the Housing Act of 1959, 73 Stat. 679, 42 U.S.C. 1401 et seq. (1964 ed. and Supp. V) and Conn. Gen. Stat. Rev. 8-38 et seq.
[ Footnote 2 ] In that case Judge J. Skelly Wright, speaking for the Court of Appeals said:
[ Footnote 3 ] On review, the Connecticut court stated that a "sufficient bond with surety is essential to a valid appeal." But in the setting of the opinion, as I read it, that meant no more than a description of the normal manner of effecting an appeal. And the Connecticut court's insistence that the tenants did not lack "the economic power to make themselves heard in a court of law" refers to the fact that they were ably represented by attorneys for the New Haven Legal Assistance Association, Inc., a factor only emphasizing their indigency. Not a word in the opinions of the Connecticut courts suggests that the statutory bond requirement could not be waived. [399 U.S. 510, 517]