                                                FIRST DIVISION
                                                September 20, 2010




No. 1-09-1717

KEITH LANDERS,                             )    Appeal from the
                                           )    Circuit Court of
     Petitioner-Appellee,                  )    Cook County.
                                           )
v.                                         )
                                           )
CHICAGO HOUSING AUTHORITY, a Municipal     )
Corporation,                               )    The Honorable
                                           )    William O. Maki,
     Respondent-Appellant.                 )    Judge Presiding.


     JUSTICE LAMPKIN delivered the opinion of the court:

     Respondent, Chicago Housing Authority (CHA), a municipal

corporation, appeals the circuit court’s judgment in favor of

petitioner, Keith Landers, on his petition for certiorari,

thereby reversing the CHA’s denial of petitioner’s application

for public housing.    The CHA contends the circuit court erred in

its decision.    Based on the following, we affirm.

FACTS

     In February 1995, petitioner filed an application with the

CHA for public housing.     Petitioner was placed on a wait list.

In November 2008, petitioner was notified that he had reached the

top of the wait list and was eligible for housing assuming he

passed various background checks.     The CHA used the private firm

Screening Reports, Inc., to conduct a criminal background check.

The criminal background report revealed that petitioner had been
1-09-1717

arrested 34 times for various felony and misdemeanor charges.         As

a result, the CHA rejected petitioner’s application for housing,

citing a pattern of arrest and/or conviction for certain criminal

activities.       In response, petitioner requested that the CHA hold

an informal hearing pursuant to the CHA’s administrative hearing

process so that he could provide documentation to dispute the

accuracy of the criminal background report.       See 24 C.F.R.

§§960.204(c), 906.208(a)(2008); 42 U.S.C. §1437d(q)(2)(2006).

       A hearing was held on February 25, 2009.     According to the

parties’ stipulated statement of facts,1 petitioner produced a

fingerprint-based criminal history report from the Chicago police

department (CPD) and a revised report from Screening Reports,

Inc.       The revised report from Screening Reports, Inc., showed

that petitioner had been arrested for four felony offenses and

nine misdemeanor offenses, as well as for four civil ordinance

violations.       The offenses included misdemeanor battery,

misdemeanor assault, misdemeanor theft, criminal trespass, being

a fugitive from justice, possession of a controlled substance,

possession of drug paraphernalia, and drinking on a public way.

All of the charges, however, had been dismissed except for one

civil offense for drinking on a public way.       The CPD report


       1
           The stipulation was entered pursuant to section 3-108 of

the Administrative Review Law.       735 ILCS 5/3-108 (West 2008).

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showed that petitioner had no prior convictions.

     According to the parties’ stipulation, petitioner testified

at the mitigation hearing that the original criminal background

report was inaccurate because it contained a high volume of

arrests attributable to his twin brother.    When asked by CHA

representatives whether he committed the criminal offenses listed

in the revised report, petitioner maintained that he did not

commit the acts for which he was arrested.    Petitioner testified

that the police frequently questioned and arrested him merely

because he was homeless and often gathered him in with other

homeless individuals being questioned and arrested by the police.

Petitioner testified that nearly all of the charges listed in his

revised background report were dismissed at the initial court

hearing because they lacked merit.

     On March 2, 2009, the CHA sent petitioner a letter of

denial.   The letter stated that “[b]ased on the information and

documents that [petitioner] provided, and the additional

research, the CHA has determined and can document a pattern of

arrest and/or conviction for certain criminal activities.”    The

letter further informed petitioner that his name had been removed

from the CHA’s wait list.

     On March 23, 2009, petitioner filed a petition for

certiorari in the circuit court requesting reversal of the CHA’s



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decision.2     In response, the CHA filed a section 2-619 (735 ILCS

5/2-619 (West 2008)) motion to dismiss, arguing that petitioner’s

arrest record provided sufficient support for the CHA’s decision.

     On June 5, 2009, the circuit court conducted a hearing.       At

the outset, the circuit court denied the CHA’s motion to dismiss

and proceeded to consider the petition for certiorari.     The

circuit court ultimately granted certiorari, concluding that,

although the CHA was entitled to review the arrest record of an

applicant, petitioner did not pose a threat to the other housing

residents where his arrests were dismissed and were largely based

on his homelessness.     The circuit court granted the CHA’s motion

to stay its June 5, 2009, order.     The CHA appeals the circuit

court’s June 5, 2009, order.3


     2
         Pursuant to the Intergovernmental Cooperation Act (5 ILCS

220/1 et seq. (West 2008)), CHA tenant grievances are heard and

adjudicated by the department of administrative hearings for the

city of Chicago.
     3
         This court granted leave to file a brief amicus curiae in

support of petitioner pursuant to Supreme Court Rule 345 (210

Ill. 2d R. 345) to the Edwin F. Mandel Legal Aid Clinic of the

University of Chicago Law School, Uptown Peoples’ Law Center,

Chicago Area Fair Housing Alliance, Chicago Coalition for the

Homeless, Legal Action Center, National Law Center on

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1-09-1717

DECISION

     The CHA operates under the Illinois Housing Authorities Act

(310 ILCS 10/1 et seq. (West 2008)).    The Illinois Housing

Authorities Act did not adopt the Administrative Review Law (735

ILCS 5/3-101 et seq. (West 2008)); therefore, the appropriate

vehicle for review is a common law writ of certiorari, as was

done in this case.    Outcom, Inc. v. Illinois Department of

Transportation, 233 Ill. 2d 324, 333, 909 N.E.2d 806 (2009).     We,

however, treat this appeal as we would any other appeal for

administrative review.    Outcom, Inc., 233 Ill. 2d at 337.    “ ‘In

administrative cases, we review the decision of the

administrative agency, not the determination of the circuit

court.’ ”   Outcom, Inc., 233 Ill. 2d at 337, quoting Wade v. City

of North Chicago Police Pension Board, 226 Ill. 2d 485, 504, 877

N.E.2d 1101 (2007).

     At issue is whether the CHA had the authority to reject

petitioner’s application for housing based on his arrest record.

The CHA contends its decision was accurate where petitioner’s

arrests in the preceding three years demonstrated that he was a

risk to the health, safety, and welfare of other tenants.

Petitioner responds that the CHA’s decision rejecting his


Homelessness and Poverty, and the Sargent Shriver National Center

on Poverty Law.

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1-09-1717

application was contrary to the governing federal statutes and

regulations that permit denial of an application only where the

applicant has engaged in past criminal activity.     Petitioner

attests that mere arrests such as his do not constitute criminal

activity.

       The issue before us involves a mixed question of fact and

law.    “[A] mixed question is one ‘in which the historical facts

are admitted or established, the rule of law is undisputed, and

the issue is whether the facts satisfy the statutory standard, or

*** whether the rule of law as applied to the established facts

is or is not violated.’ ”    AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 392, 763

N.E.2d 272 (2001), quoting Pullman-Standard v. Swint, 456 U.S.

273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790

n.19 (1982).    As a result, we review the CHA’s denial of

petitioner’s application under the clearly erroneous standard.

Outcom, Inc., 233 Ill. 2d at 337.      An agency’s decision is

clearly erroneous only where, after reviewing the entire record,

the reviewing court is “ ‘left with the definite and firm

conviction that a mistake has been committed.’ ” Outcom, Inc.,

233 Ill. 2d at 337, quoting AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 395, 763

N.E.2d 272 (2001).



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1-09-1717

     The CHA, as a federally-financed housing authority and

pursuant to the United States Housing Act of 1937 (Housing Act)

(42 U.S.C. §1437 et seq. (2006)), promulgated rules and

regulations regarding selection and eligibility for admission to

public housing within its Admissions and Continued Occupancy

Policy (ACOP).4     The majority of the ACOP is a compilation of the

regulations of the Department of Housing and Urban Development

(HUD).     See 24 C.F.R. §5.100 et seq. (2008); 24 C.F.R. §960.101

et seq. (2008).

     Relevant to this appeal, the ACOP provides that “[a]ll

applicants will be screened in accordance with HUD regulations

and sound management practices.     Screening will include a

criminal background, credit, and residential history check.”

FY2007 ACOP §II.F.     During the screening process, applicants are

required “to demonstrate their ability to comply with the

essential obligations of tenancy” which includes “[t]o not engage

in criminal activity that threatens the health, safety, or right

to peaceful enjoyment of the premises by other residents, staff,

or people in the immediate vicinity.”     FY2007 ACOP §II.F(1)(h),

citing 24 C.F.R. §960.203 (2006).




     4
         The ACOP applicable to this appeal, and the version

appearing in the record on appeal, is the amended 2007 ACOP.

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1-09-1717

     According to the screening criteria, the CHA will reject an

application where the CHA “can document via police arrest and/or

conviction documentation” that “[a]n applicant *** has a criminal

history in the past three years that involves crimes of violence

to persons or property as documented by police arrest and/or

conviction documentation.”    FY2007 ACOP §II.G.14(d), citing 24

C.F.R. §906.203(c)(3) (2006) (“[a] history of criminal activity

involving crimes of physical violence to persons or property or

other criminal acts which would adversely affect the health,

safety or welfare of other tenants”).    Crimes of violence are

described as including, but not limited to:

            “homicide or murder; destruction of property or

     vandalism; burglary; armed robbery; theft; trafficking;

     manufacture, use, or possession of an illegal drug or

     controlled substance; threats or harassment; assault

     with a deadly weapon; domestic violence; sexual

     violence, dating violence, or stalking; weapons

     offenses; criminal sexual assault; home invasion;

     stalking; kidnapping; terrorism; and manufacture,

     possession, transporting or receiving explosives.”

     FY2007 ACOP §II.G.14(d).

However, this general rule for rejecting applicants is limited

when based on an arrest report.    The ACOP expressly provides that

“[i]f the CHA rejects an applicant based upon a police arrest

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report pending case information, the applicant’s name will remain

on the wait list until documentation is presented showing the

outcome of the case.”   FY2007 ACOP §II.G.14(f).

     In instances where the screening process reveals negative

information, an applicant is provided with a chance to present

verifiable mitigating information.     FY2007 ACOP §II.H.1; see 24

C.F.R. §960.204(c) (2006).    The CHA considers “the time, nature,

and extent of the applicant’s conduct and any factors that might

indicate a reasonable probability of favorable future conduct”

(FY2007 ACOP §II.H.1), as well as whether the applicant can

provide documentation of rehabilitation (FY2007 ACOP §II.H.2.).

When an applicant is deemed ineligible for admission, an informal

hearing may be requested.    24 C.F.R. §960.208(a) (2006).

     After reviewing the applicable ACOP provisions, we conclude

that convictions and verifiable arrests for violent crimes,

including but not limited to those listed and drug-related

criminal activity or a pattern of illegal drug use, constitute

the “history of criminal activity” that the CHA finds prohibitive

in its screening process.    See FY2007 ACOP §II.G.14(d); 24 C.F.R.

§§960.203, 960.204 (2006).

     Here, petitioner’s original background check revealed

negative information.   The CHA complied with the ACOP by

satisfying petitioner’s request for an informal mitigation

hearing.    At that hearing, petitioner produced an accurate arrest

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report, which revealed that, within the relevant three-year time

period, he had two felony arrests, one of which was for

possession of an unknown quantity of a controlled substance and

the other was for being a fugitive from justice, and seven minor

misdemeanor arrests, including battery, assault, criminal

trespass, and possession of drug paraphernalia.   Our review of

the offenses purely based on title, as we have no other facts to

review, demonstrates that none of these arrests seemingly rise to

the level of the requisite violent crimes or drug-related

criminal activity necessary to constitute a history of criminal

activity.

     More importantly, however, section II.G.14(d) of the ACOP

limits the CHA’s authority to deny an application based upon an

arrest, such that “the applicant’s name will remain on the wait

list until documentation is presented showing the outcome of the

case.”   FY2007 ACOP §II.G.14(f).   Petitioner presented the only

documentation in this case in the form of a corrected criminal

background report and a CPD criminal history report.   These

reports showed that all of petitioner’s prior arrests, not only

those in the relevant three-year time period, had been dismissed,

and petitioner had never been convicted of a crime.    In addition,

petitioner testified at the informal mitigation hearing that he

did not commit any of the acts for which he was arrested; rather,



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petitioner said that he was arrested merely as a result of the

circumstances of being a homeless man.   These facts were

unrebutted by the CHA.   In fact, the CHA did not present any

evidence to dispute petitioner’s documentation or testimony.

     Moreover, petitioner’s criminal background report was bare

bones, in that it merely contained defendant’s name, the charged

offenses, and the dates of the dispositions.   There were no

police reports or arrest reports to provide any context for the

arrests.    As a result, the only facts upon which the denial could

have been based were those presented by petitioner.   The outcome

of the arrests, as stated in section II.G.14(f) of the ACOP, was

the dispositions.   FY2007 ACOP §II.G.14(f).   The disposition of

each arrest was a dismissal.   Therefore, according to section

II.G.14(f) of the ACOP, petitioner’s arrests could not be a basis

for the rejection of his application.    The information provided

by petitioner and the lack of information added by the CHA should

have been considered at the informal mitigation hearing to inform

“the time, nature, and extent of the applicant’s conduct” (FY2007

ACOP §II.H.1), such that there was no verifiable criminal conduct

to support the rejection of petitioner’s application.   Instead,

petitioner’s name should have remained on the wait list if his

housing unit was no longer available.




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     The CHA cites Perry v. City of Milwaukee Housing Authority,

No. 06-C-0101 (E.D. Wis. April 18, 2007), to support its

contention that evidence of a conviction is not required to

reject an applicant.    We agree that evidence of conviction is not

a prerequisite for denying an application for public housing;

however, we find that Perry does not support the CHA’s denial of

petitioner’s application in this case.

     In Perry, the United States District Court for the Eastern

District of Wisconsin reviewed the City of Milwaukee Housing

Authority’s (CMHA) denial of benefits to an applicant pursuant to

section 8 of the Housing Act (42 U.S.C. §1437f (2006)) and 24

C.F.R. §982.553 (2006), which grants a public housing authority

(PHA) the authority to prohibit admission where the applicant has

engaged in “other criminal activity which may threaten the

health, safety, or right of peaceful enjoyment of the premises.”

Perry, No. 06-C-0101.   The CMHA’s denial was based on the

applicant’s two prior arrests for domestic battery.     Perry, No.

06-C-0101.

     Unlike the CHA in the instant case, the CMHA provided copies

of criminal complaints and arrest reports to support its

decision.    Perry, No. 06-C-0101.   Additionally, in contrast to

the instant case, during his informal hearing, the applicant did

not deny the accuracy of the supporting documentation; rather, he

argued that his arrests were irrelevant because he was never

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convicted of the offenses.   Perry, No. 06-C-0101.   The hearing

officer upheld the CMHA’s decision, noting that the facts in the

criminal complaints demonstrated that the offenses occurred, but

that the victim refused to press charges.   Perry, No. 06-C-0101.

The Eastern District of Wisconsin agreed.   Perry, No. 06-C-0101.

In stark contrast to our case, the CMHA’s decision was supported

with facts regarding the circumstances of the applicant’s

domestic battery arrests.

     In another case, albeit for the termination of public

housing, the Missouri Court of Appeals considered whether the PHA

there, the Wellston Housing Authority (WHA), had the authority to

terminate a tenant’s lease based on a guest’s criminal record.

Wellston Housing Authority v. Murphy, 131 S.W.3d 378 (Mo. App.

2004).   The reviewing court concluded that, pursuant to the

Housing Act (42 U.S.C. §1437(d)(l)(6) (2000)) and 24 C.F.R.

§966.4(l)(5)(iv), the WHA did not possess the authority to

terminate the tenant’s lease where the guest’s criminal record

did not provide evidence of criminal activity during the tenant’s

lease term.   Wellston Housing Authority, 131 S.W.3d at 380-81.

Similar to 24 C.F.R. §906.204(c), the relevant provision in

Wellston Housing Authority, i.e., 24 C.F.R. §966.4(l)(5)(iv)

(2004), provides tenants with the opportunity to dispute the

accuracy of the criminal record at issue.   As in our case, the



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criminal record there did not provide evidence of the relevant

criminal activity and, therefore, was ineffectual in supporting

the PHA’s decision.

     Moreover, we are not persuaded by the CHA’s reliance on

Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994).    In Talley, the CHA

denied a handicapped individual’s application for housing based

on a lengthy arrest and conviction record.     Talley, 13 F.3d at

1032.   The CHA supported its decision with the applicant’s arrest

and conviction record, which revealed convictions for theft,

rape, possession of burglary tools, possession of cocaine, and

unlawful use of a weapon, as well as outstanding warrants for

robbery and armed robbery.   Talley, 13 F.3d at 1033 n.2.

Following an informal hearing during which the denial was

affirmed, the applicant filed suit against the CHA, alleging

discriminatory tenant selection practices in violation of the

Fair Housing Act (32 U.S.C. §3601 et seq. (1988)), section 504 of

the Vocational Rehabilitation Act (29 U.S.C. §794 (1994)), civil

rights statutes (42 U.S.C. §§§§§§ 1981, 1982, 1983, 1985, 1986,

1988), and the due process and equal protection clauses of the

Constitution (U.S. Const., amends. XIV, IV).    Talley, 13 F.3d at

1032.   The Seventh Circuit affirmed the dismissal of the

applicant’s complaint because he failed to link his disability to

the reason why his application was rejected by the CHA where he



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contended that his application to the disability program was

rejected solely on the basis of his criminal record.    Talley, 13

F.3d at 1034.   The Seventh Circuit concluded that the applicant’s

claim of being unlawfully discriminated against based on his

criminal record had no arguable basis in the laws cited by the

applicant.   Talley, 13 F.3d at 1034-35.

     We do not dispute the CHA’s ability to reject an applicant

based on a criminal record that includes convictions and

substantiated arrests.   We, however, highlight the fact that the

applicant in Talley had an arrest and conviction record showing

convictions for a number of violent offenses.   The Talley

application was not merely rejected based on a number of minor

felony and misdemeanor arrests that were dismissed without

prosecution, as was the case for our petitioner here.

     We recognize that the ACOP does not provide an evidentiary

standard for rejecting an application based on a history of

criminal activity; however, the CHA did not even meet the

evidentiary standard for civil cases, namely, the preponderance

of the evidence.   See, e.g., Department of Central Management

Services v. Illinois Labor Relations Board, 382 Ill. App. 3d 208,

220-21, 888 N.E.2d 562 (2008); Hearne v. Chicago School Reform

Board of Trustees of the Board of Education, 322 Ill. App. 3d

467, 480, 749 N.E.2d 411 (2001); In re Interest of Marcus H., 297


                               -15-
1-09-1717

Ill. App. 3d 1089, 1098, 697 N.E.2d 862 (1998).    The CHA had no

evidence whatsoever that petitioner engaged in criminal activity

where the outcome of his arrests was the consistent dismissal of

the charges.

     We find further support within the criminal context for our

conclusion that petitioner’s dismissed arrests do not constitute

a history of criminal activity and therefore cannot support the

rejection of his application for public housing.    For example,

arrests cannot be used for purposes of impeachment; rather, only

convictions that are relevant to a witness’s credibility are

admissible impeachment evidence.   People v. Brown, 61 Ill. App.

3d 180, 183 (1978); see People v. Pecoraro, 175 Ill. 2d 294, 309,

677 N.E.2d 875 (1997).   Moreover, although a prior arrest may be

used as aggravating evidence at a sentencing hearing, it must be

deemed relevant and reliable to be admissible.     People v.

Williams, 272 Ill. App. 3d 868, 879, 651 N.E.2d 532 (1995).

Absent evidence of reliability “the consideration of a mere

arrest is prejudicial error [citation] unless the record

demonstrates that the weight placed on the improper factor by the

court was insignificant. [Citation.]”   Williams, 272 Ill. App. 3d

at 879.   In capital sentencing hearings, “[h]earsay evidence of

other crimes which did not result in prosecution or conviction is

*** admissible” if there is a demonstration of relevancy and

reliability.   People v. Hudson, 157 Ill. 2d 401, 450, 626 N.E.2d

                               -16-
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161 (1993).

     Simply stated, there was no evidence that petitioner was a

potential threat to the health, safety, and welfare of the public

housing community.   The sheer number of petitioner’s arrests does

not establish a history of criminal activity.   While we agree

that the CHA need not demonstrate a history of convictions to

establish a history of criminal activity, the CHA, by its own

standards, was required to determine that the “outcome” of

petitioner’s arrests demonstrated a history of criminal activity

that could potentially threaten the health, safety, and welfare

of the premises.   We conclude that the CHA failed to support its

rejection of petitioner’s application.   The CHA’s decision was,

therefore, clearly erroneous.

     We need not address petitioner’s constitutional challenges

raised for the first time on appeal because we have decided the

case on other grounds.   Beelman Trucking v. Illinois Workers’

Compensation Comm’n, 233 Ill. 2d 364, 380, 909 N.E.2d 818 (2009)

(“[i]t has long been recognized that constitutional issues will

be reviewed by this court only when the case may not be decided

on nonconstitutional grounds”).

CONCLUSION

     We affirm the circuit court’s June 5, 2009, order, reversing

the CHA’s denial of petitioner’s application for housing.

     Affirmed.

     GARCIA, P.J., and PATTI, J., concur.



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        REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



                           KEITH LANDERS,

                        Petitioner-Appellee,

                                 v.

       CHICAGO HOUSING AUTHORITY, a Municipal Corporation,

                        Respondent-Appellant.



                            No. 1-09-1717

                     Appellate Court of Illinois
                   First District, FIRST DIVISION

                         September 20, 2010


  Justice Bertina E. Lampkin authored the opinion of the court:

       Presiding Justice Garcia and Justice Patti concur.


            Appeal from the Circuit Court of Cook County.
              The Hon. William O. Maki, Judge Presiding.


                        COUNSEL FOR APPELLANT
            Chicago Housing Authority, Chicago, IL 60605
              OF COUNSEL: Pamela Cotten and Thomas King


                       COUNSEL FOR APPELLEE
      Legal Assistance Foundation of Metropolitan Chicago,
                         Chicago, IL 60604
                 OF COUNSEL: Richard M. Wheelock




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