Argued: October 3, 2018
Circuit Court for Harford County Case No.: 12-C-16-000263
Barbera, C.J. Greene [*] Adkins McDonald Watts Hotten Getty,
paraphrase Justice William Brennan in the landmark decision
Goldberg v. Kelly, 397 U.S. 254, 265 (1970), public
assistance programs are no mere charity. They are the very
means by which we live out our creed to "promote the
general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity." U.S. Const. pmbl. To
discontinue such aid is no small matter and has consequences
well beyond the single individual for whom the assistance has
been terminated. In this case, we evaluate housing voucher
termination procedures and consider whether they are both
adequately protective of public housing voucher recipients
and limitedly burdensome on public housing officials.
we resolve two questions: (1) whether Respondent Harford County
Housing Agency ("HCHA") terminated Petitioner Karen
McDonell's voucher without affording appropriate
procedures under Maryland law and the United States
Constitution; and (2) whether the HCHA's decision to
terminate McDonell's voucher was supported by substantial
evidence in the record.
shall hold that the HCHA complied with procedural due
process, that Maryland law required no additional process,
and that the record contained substantial evidence.
Overview and Procedural Posture
November 4, 2011, Karen McDonell was enrolled in the Housing
Choice Voucher Program ("HCVP" or "Voucher
Program," but commonly "Section 8"). The HCVP
is a federally-funded housing assistance program,
administered by the HCHA in Harford County, Maryland. Families
enrolled in the HCVP must abide by a set of guidelines,
explained in detail below, or risk termination of their
monthly rental assistance.
participated in the Voucher Program without issue for more
than three years. In February 2015, she fell behind on her
obligation to reimburse the HCHA for an overpayment and
entered into a Restitution Agreement. Under the agreement,
she was required to make monthly payments of $42.22. The
amount of the payments was ultimately lowered because
McDonell struggled to afford the first-prescribed amount.
Even so, she failed to make payments in August and September
2015, McDonell was involved in an altercation involving her
sister, a neighbor, and the neighbor's daughter. McDonell
was found guilty on two counts of second-degree assault and
was incarcerated at the Harford County Detention Center.
While McDonell was incarcerated, her mother twice informed
the HCHA that McDonell and her family were not residing in
the home: once on October 1 and once on an unknown date.
During her incarceration, McDonell was allegedly denied
access to her medication, and consequently, fell into a
diabetic coma and was taken to Upper Chesapeake Medical
Center. The HCHA was made aware of this.
was released from jail on October 15, 2015. Days after her
release, McDonell's unit failed a Housing Quality
Inspection due to a rodent infestation, and she was ordered
to make repairs by November 10. But on November 10, McDonell
was not present at the home for the reinspection.
November 30, 2015, the HCHA sent McDonell a letter notifying
her that her Housing Voucher was being terminated for the
1. Failure to provide access to your unit for the required
Housing Quality Standard (HQS) Inspection scheduled for
November 10, 2015.
2. Failure to notify the Housing Agency that your family was
not residing in the assisted unit. (According to the Maryland
Judiciary Case Search, you were incarcerated from September
8, 2015, through October 14, 2015.)
3. On June 9, 2015, you were charged with two counts of
Second Degree Assault in the District Court for Harford
County. On September 8, 2015, the District Court of Harford
County listed the disposition for both charges as guilty.
4. Failure to pay restitution to the Housing Agency in
accordance with the restitution agreement you signed on
February 5, 2015. The last payment made on your accoun[t] was
October 19, 2015.
letter also advised McDonell that her housing assistance
would terminate December 31, 2015 and that she had the right
to request an informal hearing within 14 days. McDonell
requested an informal hearing, which was held on December 21,
2015. The Hearing Officer ("HO") issued a decision
upholding the termination on January 6, 2016, which is
excerpted at length below.
sought judicial review in the Circuit Court for Harford
County. McDonell argued that: the hearing was
"unfair," she never received notice of the
reinspection, her mother promptly notified the HCHA of
McDonell's incarceration, she was "caught up"
on her restitution payments, and she was "falsely"
charged with two counts of second-degree assault. The Circuit
Court determined that the record contained substantial
evidence to justify the HCHA's decision to terminate
McDonell's voucher. The judge upheld the termination on
all four grounds listed in the notice.
unreported decision, the Court of Special Appeals affirmed
the decision of both the Circuit Court and the HO. While
finding the due process issues unpreserved, the intermediate
appellate court went on to hold that, even if the issue was
properly before it, "the Housing Agency did not violate
appellant's due process rights." It also held that
"the [HCHA's] decision to terminate appellant's
Housing Vouchers was supported by substantial evidence in the
record and not premised upon an erroneous legal
Regulations and the Informal Hearing Procedure
established the HCVP with the express purpose of
"promot[ing] the general welfare of the Nation . . .
." 42 U.S.C. § 1437(a)(1). In doing so, Congress
sought to "remedy the unsafe housing conditions"
and "address the shortage of housing affordable to
low-income families." Id. §
1437(a)(1)(A)-(B). The Voucher Program is funded by the
federal government, regulated and overseen by the Department
of Housing and Urban Development ("HUD") and
administered by state and local public housing agencies
("PHAs"). See id. § 1437f. Congress
noted its intent to "vest in public housing agencies
that perform well the maximum amount of responsibility and
flexibility in program administration," so long as the
agency is "appropriate[ly] accountab[le] to public
housing residents, localities, and the general public."
Id. § 1437(a)(1)(C).
are required to "comply with HUD regulations,"
issued in the Code of Federal Regulations, and "other
binding program directives." 24 C.F.R. §
982.552(a). Among these is the requirement to provide
individuals with the opportunity for an informal hearing when
their housing vouchers have been terminated. See id.
§ 982.555. Under the regulations, a "PHA must give
a participant family an opportunity for an informal
hearing" to consider whether the PHA's decision is
"in accordance with the law" when, inter
alia, the PHA decides to terminate assistance: (1) due
to "the [participant] family's action or failure to
act," explained in 24 C.F.R. § 982.552; or (2)
"because the participant family has been absent from the
assisted unit for longer than the maximum period permitted
under PHA policy and HUD rules." Id. §
those circumstances, the PHA "must give the family
prompt written notice" of the termination of assistance.
Id. § 982.555(c)(2). This notice must include:
(1) a "brief statement" of the reasons for the
termination decision; (2) a statement that the family may
request an informal hearing regarding the decision; and (3)
the deadline for requesting the informal hearing.
Id. § 982.555(c)(2)(i)-(iii). Additionally, if
an informal hearing is requested, it must occur before
housing assistance is terminated. Id. §
regulations also provide guidance regarding hearing
procedures. Both the family and the PHA are given an
opportunity to conduct discovery. The family "must be
given the opportunity to examine . . . any PHA documents that
are directly relevant" before the hearing. Id.
§ 982.555(e)(2)(i). Consequently, the PHA may not
"rely on" any documents during the hearing that
were not made "available for examination" by the
family. Id. The PHA may also grant itself similar
discovery rights in its Administrative Plan. See id.
§ 982.555(e)(2)(ii). Both the PHA and the family must
also "be given the opportunity to present evidence"
at the hearing and "question any witness."
Id. § 982.555(e)(5). Families have the right to
be represented "by a lawyer or other
representative" at their own expense. Id.
hearings are conducted by an HO. This individual may be
"any person" designated by the PHA, so long as he
or she did not "approve the decision under
review" and is not a subordinate of that person.
Id. § 982.555(e)(4)(i). The HO must issue a
written decision "stating briefly the reasons for that
decision," using the "preponderance of the
evidence" standard for making factual determinations.
Id. § 982.555(e)(6). HUD guidelines explain
that "the decision required by the regulation tells the
participant what was decided, and the reasons for the
decision." Section 8 Housing Assistance Payments
Program; Existing Housing, 49 Fed. Reg. 12215, 12230
(March 29, 1984). Furthermore, while overly
"legalistic" decisions would add little value to
the process, the "decision required by the regulation
must be truly informative as to the reasons for the
are also required to adopt a written Administrative Plan
"that establishes local policies for administration of
the [Voucher Program] in accordance with HUD regulations and
requirements." 24 C.F.R. § 982.54(a)-(b). These
Administrative Plans flesh out and add to the regulatory
guidance and provide more detailed procedures for informal
hearings. See id. § 982.555(e)(1). The HO must
oversee the hearing in accordance with the procedures in the
PHA's Administrative Plan. See id. §
lengthy, the relevant portions of the HCHA Administrative
Plan are largely a restatement of the informal hearing
requirements included in the HUD regulations. Regarding the
informal hearing decisions, the Administrative Plan states
that the HO's decision must: (1) "be based solely on
allowable pertinent evidence presented at the time of the
informal hearing"; (2) determine "if the action,
inaction, or decision of the HCHA is in accordance with HUD
regulations and this plan"; and (3) include "[a]
clear summary of the decision," "the reasons for
the decision," and "[t]he effective date of the
decision." Harford County Housing Agency,
Administrative Plan 171 (2016) [hereinafter
Admin. Plan]. The Administrative Plan also provides
timeframes for some of the HUD requirements. See id.
at 161, 169.
Due Process Overview
Process Clause is the floor upon which each of the above
statutes, regulations, and administrative plans rests-it
prevents procedures from falling below a certain level. There
are two questions at the heart of any procedural due process
case. The first question considers whether due process
protections should be afforded to the interest at issue.
Specifically, the Fifth and Fourteenth Amendments list
"life, liberty, [and] property" as protected
interests. U.S. Const. amends. V, XIV. The next question is:
If a protected interest is involved, what process is due?
"Due process, unlike some legal rules, is not a
technical conception with a fixed content unrelated to time,
place and circumstances." Cafeteria & Restaurant
Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S.
886, 895 (1961) (internal citation omitted). Thus,
appropriate process in one circumstance may not be
appropriate in another.
Goldberg v. Kelly, 397 U.S. 254, 260 (1970), the
United States Supreme Court addressed the issue of
"whether the Due Process Clause requires that [a
welfare] recipient ("Kelly") be afforded an
evidentiary hearing before the termination of benefits."
The Court first concluded that welfare payments are a
protected property interest under the Constitution.
Id. at 262. The more difficult question was the
"extent to which procedural due process must be afforded
. . . ." Id. at 262-63. The measure of
appropriate process is not static. Rather, it is a sliding
scale dependent on a balancing of two interests: (a) the
private interest, or "the extent to which [the
recipient] may be 'condemned to suffer grievous
loss'" due to the deprivation; and (b) the
governmental interest, or the monetary and efficiency
incentives inherent in a "summary
adjudication." Id. at 263 (internal citations
omitted). Thus, the question is whether "the
recipient's interest in avoiding the loss outweighs the
governmental" efficiency interest. Id.
Supreme Court first highlighted that it was
"crucial" to consider that terminating aid to the
private welfare recipient "pending resolution of a
controversy over eligibility may deprive an eligible
recipient of the very means by which to live while he
waits." Id. at 264. Then, while noting the
government's valid interest in conserving "the fisc
and administrative time and energy," Justice Brennan,
writing for the Court, also pointed out that the governmental
interest is served by programs that "promote the general
Welfare . . . ." Id. at 265. These programs
provide citizens with "the means to obtain essential
food, clothing, housing, and medical care." Id.
the Court concluded that "[t]he stakes [were] simply too
high for the welfare recipient," whose interest
"clearly outweighs the State's competing concern . .
. ." Id. at 266. Thus, a pre-termination
hearing was essential "to protect a recipient against an
erroneous termination of his benefits." Id. at
267. Specifically, the hearing must be "at a meaningful
time and in a meaningful manner." Id. (citation
omitted). The welfare recipient must have: (1) "timely
access and adequate notice detailing the reasons for a
proposed termination"; and (2) "an effective
opportunity to defend by confronting any adverse witnesses
and by presenting his own arguments and evidence
orally." Id. at 267-68.
the decision rendered from the pre-termination hearing, the
Goldberg Court determined that "the
decisionmaker's conclusion as to the recipient's
eligibility must rest solely on the legal rules and evidence
adduced at the hearing." Id. at 271. "To
demonstrate compliance with this elementary requirement, the
decision maker should state the reasons for his determination
and indicate the evidence he relied on, though his statement
need not amount to a full opinion or even formal findings of
fact and conclusions of law." Id. (internal
underlying importance of appropriate pre-deprivation
procedures and a resulting adequate decision was discussed in
Moore v. Ross, 502 F.Supp. 543 (S.D.N.Y. 1980). In
Moore, the United States District Court for the
Southern District of New York enumerated the "major
purposes" of the Goldberg requirements, which
are: (1) to "protect against arbitrary and capricious
decisions"; (2) to "safeguard against a decision on
ex parte evidence"; and (3) "perhaps most
importantly[, ] to facilitate judicial review by enabling a
court to determine whether the decision was based upon
'an impermissible reason,' or 'no reason at
all.'" Id. at 555-56 (internal citations
omitted). Moreover, any statement or decision "must
'evince the [HO's] consideration of relevant
factors' and make accessible 'the essential facts
from which the [HO's] inferences have been
drawn.'" Id. at 556 (citation omitted).
first addressed Goldberg as it relates to informal
hearing procedures in Walker v. Department of Housing and
Community Development, 422 Md. 80 (2011). In
Walker, the main issue was whether the housing
voucher recipient was entitled to the more protective
contested case hearing procedures under the Maryland
Administrative Procedure Act ("MD APA"), as opposed
to the lesser informal hearing procedures outlined in the HUD
regulations and the PHA's administrative plan. See
id. at 82. We concluded that, because the PHA at issue
was administered directly by the State, it constituted an
"agency" under the MD APA and recipients were
entitled to a contested case hearing before their benefits
were terminated. Id. at 92. Also relevant to the
current case, we said that "the informal hearing
framework set forth in [the HUD regulations] meets
Goldberg's due process requirements."
Id. at 94. We address these same procedures again
first discuss HCHA's contention that McDonell did not
preserve her due process challenge. The Court of Special
Appeals agreed with the HCHA that McDonell "failed to
properly preserve all issues regarding due process"
because she did not "seek judicial review of the
Agency's decision on due process grounds . . . ."
Ultimately, the intermediate appellate court concluded that
McDonell waived her appellate rights pursuant to Maryland
Maryland, generally, "the appellate court will not
decide any other issue [not related to jurisdiction] unless
it plainly appears by the record to have been raised in or
decided by the trial court . . . ." Md. Rule 8-131(a).
Nonetheless, we may still choose to decide an unraised issue
"if necessary or desirable to guide the trial court or
to avoid the expense and delay of another appeal."
Id. "[T]he animating policy behind Rule
8-131(a) is to ensure fairness for the parties involved and
to promote orderly judicial administration." Jones
v. State, 379 Md. 704, 714 (2004). An appellate court
must consider these "twin goals" before reviewing
an unpreserved issue. See id. at 714-15.
filed a pro se memorandum in the Circuit Court for
Harford County. In her memorandum, McDonell states among her
reasons for appealing her voucher termination that she
"was given an unfair hearing." Both the United
States Supreme Court and this Court have repeatedly and
consistently emphasized that the purpose underlying the
procedural due process guarantee is fundamental fairness.
See Mathews v. Eldridge, 424 U.S. 319, 343, 349
(1976) (considering the "fairness and reliability of
existing pretermination procedures" and stating the
procedures must "assure fair consideration");
Goldberg, 397 U.S. at 261, 268 (referring to
"constitutionally fair proceeding[s]" and what
"fairness would require" in evaluating the scope of
the Due Process Clause); Calvert Cty. Planning Comm'n
v. Howlin Realty Mgmt., Inc., 364 Md. 301, 322 (2001)
(asserting that ...