times. This concept was embedded in the rights-privilege distinction. A right conferred by common law or constitutional origins deserved procedural protection; however, a government supported benefit constituted a privilege that could be withdrawn by the government at its whim.
During the 1970's the Court abandoned the rights-privilege distinction. It expanded the scope of procedural due process to include certain government benefits. Hence, state and city officials cannot discontinue welfare payments without a pretermination notice and hearing. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). A post-termination hearing must be afforded for the discontinuance of social security disability benefits. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Public education may not be suspended without a notice and pre-suspension hearing. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). A hearing must be provided before suspending a driver's license. Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971). And discontinuance of public employment, under certain circumstances, necessitates hearing and notice. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
These decisions recognize that certain government benefits constitute property interests. But the mere receipt of a government benefit categorized as a property interest is not enough to require the attachment of procedural protection. The benefit must, in the specific circumstances conferred, constitute an entitlement. It is necessary that the state fostered an expectation rather than a mere hope or desire.
Hence, for procedural protections to apply to the cut off of a government supported benefit, the court must find: 1) the government benefit, generically speaking, qualifies as a property interest; and 2) the property interest, under the specific circumstances conferred, constitutes an entitlement rather than a hope or desire.
B. Property Interest
The Supreme Court has recognized a property interest in welfare, Goldberg, supra, social security, Eldridge, supra, employment, Sindermann, supra, drivers' licenses, Bell, supra, and public education, Goss, supra.
Courts have also found little difficulty in recognizing a property interest in housing. This is looked upon as a continuing interest in occupancy. For example, in Caramico v. HUD, 509 F.2d 694 (2d Cir. 1974), nonowner occupants of FHA insured mortgage dwellings sought to enjoin their eviction. The Second Circuit held that the government must first afford some form of notice and hearing. It expressly recognized "a protected interest in continued occupancy." Id. at 701.
In Joy v. Daniels, 479 F.2d 1236, 1240 (4th Cir. 1973), the Fourth Circuit found that a quasi-public housing tenant enjoyed an interest stemming from "a property right or entitlement to continue occupancy until there exists a cause to evict other than the mere expiration of the lease." Id. at 1241. The same issue emerged in Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937, 943 (2d Cir. 1974). The court noted that government subsidization of housing, coupled with a "custom of renewal thereunder," gives rise to a protected property interest akin to a "mutually explicit understanding." Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33 L. Ed. 2d 570.
These cases, finding a property interest in continued occupancy, are in keeping with the Supreme Court's teachings in Goldberg v. Kelly, supra. The Court in Kelly explicated that when termination of a government benefit "may deprive an eligible recipient of the very means by which to live," the government benefit constitutes a property interest. 397 U.S. at 264, 90 S. Ct. at 1018.
The property interest herein is more severe than that recognized in Goldberg. While in Goldberg "welfare provides the means to obtain essential food, clothing, housing, and medical care," id., the elimination of the homeless person shelters would deprive the recipients of their homes, food and sanitation facilities. Instead of eliminating the means for obtaining the basic necessities of life, the District of Columbia would eliminate those very end product life support functions. Accordingly, like the residents in Caramico, Joy, and Lopez, the homeless persons possess a property interest in continued occupancy and use of their shelter.
The ability to find a property interest in government supported housing is clear; whether the D.C. homeless person shelters rise to the level of a statutory entitlement is a more difficult question.
The term statutory entitlement emerged when the Supreme Court expanded those interests protected by procedural due process to include government benefits conferred upon citizens by the states. But the term is misleading; an entitlement may exist without a statute.
The Supreme Court clearly articulated the necessity of an entitlement in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972):
Certain attributes of "property' interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must, instead, have a legitimate claim of entitlement to it.
The Court further defined the entitlement requirement in a companion case to Roth, Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33 L. Ed. 2d 570 (1972):
(Property) denotes a broad range of interests that are secured by "existing rules or understandings.' A person's interest in a benefit is a "property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.