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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MELINDA SPEELMAN,                           )       NO. 67710-1-I
                                            )
                      Petitioner,           )       DIVISION ONE
                                            )
       v.                                   )       PUBLISHED OPINION
                                            )
BELLINGHAM/WHATCOM COUNTY                   )
HOUSING AUTHORITIES and JOHN                )
HARMON, Executive Director of the           )
Bellingham/Whatcom County Housing           )
Authority, in his Official Capacity,        )
                                            )
                      Respondents.          )       FILED:  April 9, 2012
                                            )

       Leach, A.C.J.  --  Melinda Speelman challenges the trial court's denial of 

her request for a preliminary injunction in her action contesting the termination of 

her family's Section 8 housing subsidy.          The Bellingham Housing Authority 

(BHA) knew that Speelman was incarcerated at the Whatcom County jail when it 

sent  a letter to her home address notifying her that it was terminating her 

housing assistance payments.           Because this notice was not reasonably 

calculated under the circumstances to reach Speelman timely, she demonstrated 

that she likely would prevail on the merits of her claim that BHA denied her

procedural due process.  Therefore, the trial court erred by denying her request 

for a preliminary injunction. We reverse.  

                                        FACTS 

NO. 67710-1-I / 2

       BHA is a public housing authority that administers the federal Section 8 

Housing Choice Voucher Program in Whatcom County.  This program provides 

housing assistance in the form of rental subsidies to eligible families.  The 

United States Department of Housing and Urban Development (HUD) funds the 

Housing Choice Voucher Program.  The governing statute requires BHA to 

adopt a conforming administrative plan.1

       BHA's administrative plan lists several "family obligations"                  that 

participants must accept when entering the Housing Choice Voucher Program.  

These obligations include (1) notifying BHA within 14 days if any family member 

no longer resides in the residence, (2) obtaining BHA approval of all occupants 

in the residence, and (3) alerting BHA within 14 days if the family is absent from 

the  residence.2   BHA may terminate assistance if a family fails to meet its 

obligations, is absent from the residence          for more than 30 days without 

authorization, or allows persons who are  not BHA approved to live in the 

residence.  Before terminating a family's assistance, the administrative plan 

requires  that BHA send a  termination notice to the participant's home.  The 

notice must inform the participant that he or she has the right to request a 

hearing within 14 days.  BHA considers a mailed notice delivered unless it is 

       1 42 U.S.C. § 1437c-1.
       2 The administrative plan defines "absence" as "no member of the family 
is residing in the unit."   "Family members" include all household members 
approved to live in the unit by the BHA.  
                                           -2- 

NO. 67710-1-I / 3

returned to BHA clearly marked "undeliverable."

       In February 2011, Speelman and her two minor children moved into 

Walton Place Two, a BHA-subsidized apartment in Bellingham.3  At the time the 

family moved in, BHA  knew  that  Speelman           was on probation.  In March, 

Speelman  asked the sentencing court to revoke her probation because she 

could not pay monthly probation fees.  The trial court did so and sentenced her 

to 75 days in jail. 

       Before beginning her sentence on April 28, Speelman arranged for Audry 

Larsen, her 19-year-old daughter, to care for Speelman's other children at the 

Walton Place Two apartment.          Speelman did not obtain BHA's approval for 

Larsen to live in the apartment or notify BHA that she would be absent.4  

       While Speelman was in jail, BHA's Bellingham police liaison, Officer 

Lowell English, investigated a complaint that Speelman's children were "running 

around the apartment complex at night."5   When Officer English arrived at 

Speelman's apartment, he spoke to Larsen and her fiancé, Chris Kleman, who

told Officer English that Speelman was not at the apartment because she was 

       3 Speelman's sole income source is $67 per week in unemployment 
benefits.  Speelman pays $14 per month in rent, while BHA makes up the 
remaining $1,057 in rental payments.
       4 At that time, Larsen lived with her fiancé and his father.  
       5 There were also reports that an unknown male had been paying 
Speelman's rent and "someone had heard something that may have been a drug 
reference from people in Ms. Speelman's unit."
                                           -3- 

NO. 67710-1-I / 4

out of town visiting a hospitalized relative.  After Officer English left Speelman's 

apartment, he ran background checks on Speelman, Larsen, and Kleman and 

discovered that Speelman was at that time confined in the Whatcom County jail.  

Officer English also noticed that the police system listed Speelman's Walton 

Place Two apartment as Larsen's address.

       On June 2, BHA sent a letter to Speelman's home address notifying her 

that it would be terminating her housing choice voucher payments effective July 

31.  Citing BHA administrative plan provisions, the letter listed three reasons for 

the termination decision:        (1) an unauthorized person was residing in 

Speelman's apartment, (2) Speelman had been absent from her apartment for 

more than 30 days because she was in jail, and (3) Speelman failed to alert the 

BHA that she would be absent.6         The letter advised Speelman of her right to 

appeal BHA's decision by submitting a written request for a hearing within 14 

days of the notice date.     Although Speelman had given Larsen the key to her 

mailbox, Larsen did not open BHA's letter because Speelman had instructed her 

not to open any mail except that from the children's school.  

       On June 17, Speelman completed her sentence and returned to her 

apartment.  There, she discovered BHA's termination notice.  On June 23, seven 

       6 The explanation section of the termination notice reads in part, "The 
head of household has been in jail since 4/28/11 -- unreported to the landlord 
and BHA.  Audry Larsen has been living in the unit as an 
unapproved/unauthorized household member."
                                           -4- 

NO. 67710-1-I / 5

days after the deadline, Speelman requested a hearing.  BHA denied 

Speelman's request as untimely.7  BHA sent Speelman a final termination notice 

on June 29 and reassigned the housing choice voucher funds to another family. 

       Speelman sued BHA in superior court under 42 U.S.C. § 1983, alleging 

substantive and procedural due process violations and requesting declaratory 

and injunctive relief.  Speelman also asked for a preliminary injunction requiring 

BHA to continue making housing assistance              payments    to her during the 

pendency of the lawsuit.  

       The trial court denied Speelman's motion for a preliminary injunction.  In 

its oral ruling, it found "no due process violation whatsoever" and stated, "[A]ny 

loss of the appeal rights are solely and exclusively due to the circumstances of 

the plaintiff [and] entirely beyond the control of the defendant."       The trial court 

also denied Speelman's motion for reconsideration.  At the end of the trial 

court's hearing on Speelman's motion for reconsideration, however, Speelman 

moved for an "emergency time-limited injunction," which the trial court granted.  

Four days later, the court entered an agreed order staying the emergency 

preliminary injunction.  

       Speelman filed a motion in this court for accelerated discretionary review.  

       7 BHA policy states that a hearing is not required if "the participant has 
failed to provide a written request for an informal hearing to the Housing 
Authority within 14 calendar days of the notice of adverse action."  
                                           -5- 

NO. 67710-1-I / 6

BHA sought cross discretionary review of the trial court's decision to grant 

Speelman's motion for an emergency preliminary injunction.  This court granted 

Speelman's petition for discretionary review and BHA's cross                petition for 

discretionary review. 

                              STANDARD OF REVIEW

       We review a trial court order granting or denying a preliminary injunction 

for an abuse of discretion.8    A trial court abuses its discretion if its decision is 

"based upon untenable grounds, or the decision is manifestly unreasonable or 

arbitrary."9 The adequacy of notice is a mixed question of law and fact,10 which 

we review de novo.11

                                      ANALYSIS

       Speelman  challenges the trial court's  denial of           her motion for a 

preliminary injunction.  A party seeking a preliminary injunction must show (1) a 

clear legal or equitable right, (2) a well-grounded fear of immediate invasion of 

that right, and (3) the acts complained of have or will result in actual and 

substantial injury.12  "[S]ince injunctions are within the equitable powers of the 

court, these criteria must be examined in light of equity, including the balancing 

       8 Rabon v. City of Seattle, 135 Wn.2d 278, 284, 957 P.2d 621 (1998).
       9 Rabon, 135 Wn.2d at 284. 
       10 Miebach v. Colasurdo, 102 Wn.2d 170, 175, 685 P.2d 1074 (1984). 
       11 Humphrey Indus. Ltd. v. Clay St. Assocs., 170 Wn.2d 495, 501-02, 242 
P.3d 846 (2010). 
       12 Rabon, 135 Wn.2d at 284. 
                                           -6- 

NO. 67710-1-I / 7

of the relative interests of the parties and the interests of the public, if 

appropriate."13  The entitlement to an injunction should be clear; a court will not 

issue an injunction in a doubtful case.14

       The first criterion requires a court to examine the likelihood that the 

moving party will prevail on the merits of its claim.15  Speelman contends that 

BHA violated her constitutional right to procedural due process by providing 

insufficient notice of its termination decision.16  "When a state seeks to deprive a

person   of a protected interest, procedural due process requires that an

individual receive notice of the deprivation and an opportunity to be heard to 

guard against erroneous deprivation."17       Due process does not require actual 

notice.18  "Rather, . . . due process requires the government to provide 'notice 

reasonably calculated, under all the circumstances, to apprise interested parties 

of the pendency of the action and afford them an opportunity to present their 

objections.'"19  

       13 Rabon, 135 Wn.2d at 284.
       14 Rabon, 135 Wn.2d at 284-85. 
       15 Rabon, 135 Wn.2d at 285. 
       16 BHA contends that Speelman failed to preserve the notice issue for 
appeal because she did not argue it below.  But our review of the record 
satisfies us that Speelman raised this issue both in her pleadings and at the
preliminary injunction hearing. We therefore consider the issue preserved.  
       17 Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006) 
(citing Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 
(1976)).  
       18 Jones v. Flowers, 547 U.S. 220, 226, 126 S. Ct. 1708, 164 L. Ed. 2d 
415 (2006).
                                           -7- 

NO. 67710-1-I / 8

       Neither party disputes that Speelman has a constitutionally protected 

property interest in her housing choice voucher or that she was entitled to an 

opportunity to be heard.  Instead, the dispute centers on the adequacy of the 

notice she received.  Speelman contends that due process required BHA to 

send the termination notice to the Whatcom County jail.  We agree.  In Robinson 

v. Hanrahan,20 the United States Supreme Court held that notice of automobile 

forfeiture proceedings sent to the vehicle owner's home address was 

constitutionally inadequate when the State knew the owner was in prison:

       [T]he State knew that appellant was not at the address to which the 
       notice was mailed and, moreover, knew also that appellant could 
       not get to that address since he was at that very time confined in 
       the Cook County jail. Under these circumstances, it cannot be said 
       that the State made any effort to provide notice which was 
       'reasonably calculated' to apprise appellant of the pendency of the 
       forfeiture proceedings."

The Court rejected the State's argument that notice was sufficient because it 

was sent to the address listed with the secretary of state, as required by statute.  

Therefore, under Robinson, actual knowledge that a notice given using normal 

procedures would be ineffective triggers a due process obligation to take other 

steps to provide notice.21

       19 Jones, 547 U.S. at 226 (quoting Mullane v. Cent. Hanover Bank & Trust 
Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).
       20 409 U.S. 38, 40, 93 S. Ct. 30, 34 L. Ed. 2d 47 (1972).
                                           -8- 

NO. 67710-1-I / 9

       BHA's termination notice affirmatively shows that it knew Speelman was 

incarcerated when it sent the letter to her apartment.         The letter states, "The 

head of household has been in jail since 4/28/11 -- unreported to the landlord 

and BHA."    (Emphasis added.)  While this notice conformed to BHA policy, the 

government must "consider unique information about an intended recipient 

regardless of whether a statutory scheme is reasonably calculated to provide 

notice in the ordinary case."22    Even if BHA's policy is reasonably calculated to 

provide notice in normal circumstances, the special circumstances of this case 

triggered BHA's obligation to do something else.  Because BHA knew at the time 

it sent the termination letter that Speelman would not receive it, this letter was 

not reasonably calculated under the circumstances to provide notice.  It was 

constitutionally insufficient.  A reasonably calculated action would have been to 

send the notice to the Whatcom County jail in lieu of or in addition to sending it 

to Speelman's residence.

       BHA argues that our Supreme Court's decision in State v. Nelson23

requires a different result.  The State suspended Nelson's license to drive after

he refused to take a breath test when stopped on suspicion of driving under the 

influence.24   Nelson then spent several months at the King County North 

       21 Jones, 547 U.S. at 230 (citing Robinson, 409 U.S. at 40).
       22 Jones, 547 U.S. at 230.
       23 158 Wn.2d 699, 147 P.3d 553 (2006).
                                           -9- 

NO. 67710-1-I / 10

Rehabilitation Facility (NRF).25 While there, he sent a letter to the Department of 

Licensing (DOL) asking how he could have his license reinstated.26           More than 

two months later and while Nelson remained in custody, DOL revoked Nelson's 

license after determining that he was a habitual traffic offender.     It sent the order 

of revocation to Nelson's home address.27  The postal service returned the order 

of revocation unclaimed to DOL four days after Nelson's release.28         A year later, 

Nelson was arrested and convicted for driving with a suspended or revoked

driver's license.29 He appealed on procedural due process grounds.30  The court 

addressed  whether DOL deprived Nelson of procedural due process when it 

sent the revocation notice only to Nelson's address of record and not to NRF, 

"where DOL knew that Nelson had previously been incarcerated."31             (Emphasis 

added.)

       After considering the unique circumstances of the case, the court held 

that notice was adequate and affirmed Nelson's conviction.32                 The court 

distinguished Nelson from Robinson:  "In [Robinson], the Court found that the 

       24 Nelson, 158 Wn.2d at 701.
       25 Nelson, 158 Wn.2d at 701.
       26 Nelson, 158 Wn.2d at 701.
       27 Nelson, 158 Wn.2d at 701. 
       28 Nelson, 158 Wn.2d at 701-02.
       29 Nelson, 158 Wn.2d at 702.
       30 Nelson, 158 Wn.2d at 701.
       31 Nelson, 158 Wn.2d at 702. 
       32 Nelson, 158 Wn.2d at 705-06.
                                          -10- 

NO. 67710-1-I / 11

notice was inadequate because the State had actual knowledge that the notice 

would be ineffective and failed to take practicable additional steps to provide 

effective notice."33  In Nelson, however, "the State did not know that the notice 

sent to Nelson's address of record was ineffective until after the revocation 

became operative."34     The court reasoned Nelson's inquiry sent from NRF two 

months earlier did not put DOL on notice that Nelson would still be at NRF when 

it sent the revocation letter.35  And because Nelson had already been released 

from NRF by the time DOL learned that notice had been ineffective, DOL did not 

have an obligation to take additional steps to provide notice.36       Based on these 

considerations, the court determined that notice had been reasonably calculated 

to inform Nelson of DOL's actions.

       BHA cites three reasons why it believes this case is more like Nelson than 

Robinson.  First, BHA claims that "there is nothing in the record indicating that 

BHA knew that Plaintiff was incarcerated on June 2, 2011, the date the BHA sent 

the Termination Notice."  As previously noted, we disagree.  The termination 

letter itself demonstrates that BHA had actual knowledge that Speelman was in 

jail at the time the letter was sent.  

       33 Nelson, 158 Wn.2d at 705.
       34 Nelson, 158 Wn.2d at 705. 
       35 Nelson, 158 Wn.2d at 705.
       36 Nelson, 158 Wn.2d at 705.
                                          -11- 

NO. 67710-1-I / 12

       Second, BHA contends that it "did not have actual knowledge that notice 

would not reach Plaintiff personally" because it "did not know that Plaintiff [had]

asked Ms. Larsen to simply stack her mail up without opening it."                 BHA's 

argument seems to imply that Speelman had an obligation to alert BHA that she 

had a different address or that she should have had her mail forwarded to the 

jail.  But "a party's ability to take steps to safeguard its interests does not relieve 

the State of its constitutional obligation."37

       Third, BHA claims that "[a]dequate notice does not mean the BHA needs 

to verify that Plaintiff actually read the notice."  We agree.  Due process does 

not require actual notice.   Speelman, however, does not contend otherwise; she 

simply contends that notice was not reasonably calculated to inform her of BHA's 

termination decision.  

       BHA's three arguments that Nelson should apply here are unconvincing.  

BHA's knowledge that Speelman was incarcerated at the time it sent the notice 

distinguishes this case from Nelson, where the State knew only that Nelson had 

been previously incarcerated.  Because BHA knew that Speelman would not 

receive the notice at home because she was in jail, Robinson controls.  

       37 Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799, 103 S. Ct. 
2706, 77 L. Ed. 2d 180 (1983).
                                          -12- 

NO. 67710-1-I / 13

       BHA violated Speelman's procedural due process rights.  Therefore,

Speelman is likely to prevail on the merits of her claim.  Speelman satisfies the 

first preliminary injunction factor.  This, however, does not end our inquiry.  

Turning to   the second and third criteria for the issuance of a preliminary 

injunction, Speelman must demonstrate that she has a well-grounded fear of 

immediate invasion of her asserted right and that BHA's actions have or will 

result in actual and substantial injury.  

       Here, Speelman asserts the right to due process before the government 

interferes with her property interest.  She has shown a fear of immediate 

invasion of that right.  Indeed, BHA has already interfered with that right by 

terminating her federal benefits after giving          her defective notice, which 

effectively deprived her of an opportunity to be heard.

       Speelman has also shown actual and substantial injury.  Due to the failure 

of notice, she missed the deadline to appeal BHA's decision and now faces 

eviction without the benefit of a hearing.  As the United States Supreme Court 

stated in Goldberg v. Kelly,38    the importance of a hearing in situations like this 

one is paramount: 

       38 397 U.S. 254, 266, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) (quoting 
Kelly v. Wyman, 294 F. Supp. 893, 904-05 (S.D.N.Y. 1968)). 
                                          -13- 

NO. 67710-1-I / 14

       "[T]he stakes are simply too high for the welfare recipient, and the 
       possibility for honest error or irritable misjudgment too great, to 
       allow termination of aid without giving the recipient a chance, if he 
       so desires, to be fully informed of the case against him so that he 
       may contest its basis and produce evidence in rebuttal."

       Finally, considering the equities, both the parties and the public have an 

interest in ensuring that BHA administers its programs lawfully.  Contrary to 

BHA's contention, Speelman is not asking for an exception to be applied to her 

case.  She is asking that she be given the process due to her and everyone else 

in her situation.  Therefore, the equities favor granting Speelman a preliminary 

injunction. 

       Speelman meets the above criteria for a preliminary injunction; the trial 

court should have granted her motion.  Because this issue is dispositive, we do 

not consider Speelman's additional claims.  Nor do we reach the merits of BHA's 

cross appeal.

Attorney Fees

       BHA asks for attorney fees, claiming that Speelman's action is frivolous. 

"[A] defendant in an action brought under Title VII of the Civil Rights Act of 1964 

may recover attorney's fees from the plaintiff only if the District Court finds 'that 

the plaintiff's action was frivolous, unreasonable, or without foundation, even 

though not brought in subjective bad faith.'"39       "The plaintiff's action must be 

                                          -14- 

NO. 67710-1-I / 15

meritless in the sense that it is groundless or without foundation."40  Because 

Speelman's action has merit, we deny BHA's request.

                                    CONCLUSION

       Because Speelman meets the preliminary injunction criteria, the trial court 

erred by denying Speelman's motion for a preliminary injunction.  We reverse 

and remand for further proceedings consistent with this opinion.

WE CONCUR:

       39 Hughes v. Rowe, 449 U.S. 5, 14, 101 S. Ct. 173, 66 L. Ed. 2d 163 
(1980)   (quoting  Christiansburg Garment Co. v. Equal  Emp't  Opportunity 
Comm'n, 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978)).
       40 Hughes, 449 U.S. at 14. 
                                          -15-