Sup. Ct. Ga. Reported below: [ 385 U.S. Page 1037]
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
This case involves an important question regarding the right of a poor tenant to remain in possession of his shelter and defend against eviction in a court of law. It is part of the larger problem regarding the inability of indigent and deprived persons to voice their complaints through the existing institutional framework, and vividly demonstrates the disparity between the access of the affluent to the judicial machinery and that of the poor in violation of the Equal Protection Clause.
The Georgia summary eviction statute provides that a landlord may oust a tenant in a very swift, expedient manner. The landlord files with a judge of the superior court or justice of the peace an affidavit that the tenant has held over or has failed to pay rent (Ga. Code Ann. § 61-301 (1966)); and the judge issues a dispossessory warrant ordering the sheriff to evict the tenant and his possessions. Ga. Code Ann. § 61-302 (1966). The tenant may arrest the proceedings and prevent his summary eviction by filing a counter-affidavit denying the landlord's allegations (Ga. Code Ann. § 61-303 (1966)) and thereby obtain a jury trial on the facts in issue. Ga. Code Ann. § 61-304 (1966). But in order to remain in possession and obtain a trial (see Ga. Code Ann. § 61-304 (1966)) the tenant must "tender a bond with good security, payable to the landlord, for the payment of such sum, with costs, as may be recovered against him on the
trial of the case."*fn1 Ga. Code Ann. § 61-303 (1966). If the tenant is not able to furnish the security bond, he is summarily evicted. The effect is that the indigent tenant is deprived of his shelter, and the life of his family is disrupted -- all without a hearing -- solely because of his poverty.
In this case, respondent, petitioners' landlord, obtained a dispossessory warrant after filing an affidavit that petitioners had failed to pay the rent. Petitioners attempted to file counter-affidavits raising a number of defenses, together with affidavits that they were unable to post security due to their indigency. Apparently the affidavits were rejected. Petitioners then petitioned the Superior Court attempting to arrest the summary eviction. They sought vacation of the dispossessory warrants and injunctions against the landlord and the sheriff restraining them from executing the warrants. Each petitioner offered to pay into the court registry any rents due or to become due during the pendency of the action. Their petitions were denied and the action dismissed. Thereafter, petitioners were summarily evicted. On appeal, the Georgia Supreme Court held that the case was moot because petitioners had been evicted.
The State, acting on the landlord's behalf, argues that certiorari should be denied on that ground. Whether
or not a case is moot is a federal question which must be resolved by this Court. The finding of mootness by the State Supreme Court is not binding on us. See Ward v. Love County, 253 U.S. 17, 22; Love v. Griffith, 266 U.S. 32, 33-44; Liner v. Jafco, Inc., 375 U.S. 301. The mootness doctrine is a beneficial one, expressive of the need for adverse parties who will vigorously argue the conflicting contentions to the Court and a necessary one in light of the requirements of Article III. But if this case were held to be moot, no tenant would ever be able to bring the statute to this Court. His eviction would render the case moot and preclude a challenge to the very statute causing the eviction. The statute would be immune from the constitutional challenge. Perhaps I am wrong. But the point is so substantial as to require oral argument.
The effect of the security statute is to grant an affluent tenant a hearing and to deny an indigent tenant a hearing. The ability to obtain a hearing is thus made to turn upon the tenant's wealth. On numerous occasions this Court has struck down financial limitations on the ability to obtain judicial review. See, e. g., Griffin v. Illinois, 351 U.S. 12; Burns v. Ohio, 360 U.S. 252; Smith v. Bennett, 365 U.S. 708. We have recognized that the promise of equal justice for all would be an empty phrase for the poor if the ability to obtain judicial relief were made to turn on the length of a person's purse. It is true that these cases have dealt with criminal proceedings. But the Equal Protection Clause of the Fourteenth Amendment is not limited to criminal prosecutions. Its protections extend as well to civil matters. I can see no more justification for denying an indigent a hearing in an eviction proceeding solely because of his poverty than for denying an indigent the right to appeal (Burns v. Ohio, supra), the right to file a habeas corpus petition (Smith v. Bennett, Page 1040} supra), or the right to obtain a transcript necessary for appeal (Griffin v. Illinois, supra).
It is no answer to say that the Georgia procedure is fairer than the procedures of some States, whereby a tenant can be evicted without any opportunity for a hearing. Though a State may not constitutionally be required to afford a hearing before its process is used to evict a tenant, having provided one it cannot discriminate between rich and poor. It cannot consistently with the Equal Protection Clause provide a hearing in such a way as to discriminate against some "on account of their poverty." Griffin v. Illinois, supra, at 18.
The problem of housing for the poor is one of the most acute facing the Nation. The poor are relegated to ghettos and are beset by substandard housing at exorbitant rents. Because of their lack of bargaining power, the poor are made to accept onerous lease terms. Summary eviction proceedings are the order of the day. Default judgments in eviction proceedings are obtained with machine-gun rapidity, since the indigent cannot afford counsel to defend. Housing laws often have a built-in bias against the poor. ...