Supreme Court, Second Petty Bench, March 27, 2015, 平成25(オ)1655, appeal from Osaka High Court


Disposition

  • The appeal is rejected.
  • Cost of appeal to Appellant.

Reasons

Argument of counsel for Appellant:

  1. In outline, the facts established in the proceeding below are as follows:

    1. In August 2005, Appellee (Nishimiya City in Hyōgō Prefecture), on the basis of the Nishimiya City Housing Ordinance (Nishimiya City Ordinance no. 44 of 1997, hereinafter "the Ordinance"), made a decision with respect to occupation by Appellee of the city-owned public housing unit at issue in the proceeding below (units of the project concerned being constructed, purchased or leased by Appellee, and let or sublet under sections 2(2) to 7 of the Ordinance [attachment elided]).
    2. The introductory clause to section 46(1) of the Ordinance reads, "The Mayor may petition for eviction of a resident on the following grounds." Appellee revised the Ordinance in December of 2007 to add subsection 6, which reads, "when it is discovered that the resident or cohabitant is a member of an organized crime association [暴力団員であること] (the introductory clause with subsection 6 concerning association membership is referred to as "the provision").
      The Ordinance defines "member of an organized crime association" in accordance with section 2(6) of the Act on Prevention of Inappropriate Actions (hereinafter "Anti-Mob Act" (Ordinance sec. 7(5); the same definition is applied in this judgment). The Anti-Mob Act defines "organized crime association" as an organization whose members (including members of its organizational subunits) poses a risk of engaging in coordinated illegal and other designated activities on a regular basis (Anti-Mob Act sec. 2(2), and sec. 2(1) referring to offenses in Table 1 of the Anti-Mob Act that have been listed by regulation of the Public Safety Commission, to be found in section 1 of the regulation issued under the Act). Section 2(6) of the Act defines "members" and the constitutent members of such an organization.
    3. In August of 2010, Appellee consented to allow the parents of Appellant (Y2 and Y3) to reside with Appellant Y1 at the unit concerned in this case. In that connection, Appellant Y1 with Y2 delivered a covenant to Appellee, reading "If the Named Resident or a cohabitant is found to be a member of an organized crime association, the unit will be vacated immediately."
      Further, under the Ordinance the parking area of city housing is for use only by the resident and cohabitants. Vehicles of non-residents are to be removed (Ordinance secs. 56(2)(a) & 64(2), Nishimiya City housing implementing regulation (no. 1 of 1997) sec. 53(8)), and Appellee granted parking permission to Y2 in September of 2010 [reference elided].
    4. In October of 2010, Appellant Y1 was a member of a certain organized crime association (Unit C, Group B, 3rd Heritage Group A, 6th Heritage Association).
      In the same month, Appellee was contacted by the Hyōgō Prefectural Police, and learned that Y1 was an organized crime association member. In the same month, on the basis of the provision at issue in this case, Appellee demanded that Y1 vacate the housing unit by November 30 of that year, and that Y2 vacate the parking space.
    5. At the time of the notice, Appellant Y1 had already rented other accommodation, and was not physically residing in the housing unit at issue in this case. Only Y2 and Y3 were residing in the unit.
  2. This case involves a demand by Appellee, based on the organized crime association membership of Y1, that Y1 vacate the housing unit, and as owner of the unit in question that Y2 and Y3 also vacate both the premises and the parking area.

  3. The plea of counsel for Appellant is that: (1) the provision in this case inconveniences members of organized crime associations without rational cause, in violation of Constitution art. 14(1); (2) the provision in this case restricts freedom of residence beyond the degree necessary, in violation of Constitution art. 22(1); and (3) as Appellant Y1 is not a danger of local residents, and as Appellants Y2 and Y3 each suffer tangible harm from Appellee's demand, applying the provision in this case to terminate their residence and use of parking facilities is a violation of Constitution arts. 14(1) and 22(1).

  4. Given that housing is an essential foundation of the health and civic life of the population, in order to provide a housing supply for the stability and improvement of residential life, local public bodies arrange public housing for the purpose of providing stable housing to those of low income, refugees of disaster and others requiring special support (Basic Law on Housing secs. 1, 6, 7(1) & 14). By the nature of these considerations, local public bodies must enjoy a degree of discretion concerning who is to enter into or continue in residence in such accommodation.

Insofar as "organized crime association member" is defined to be membership in an organization that poses a risk of promoting coordinated illegal activities on a regular basis, it is undeniable that the continued residence of such members in city housing disturbs the tranquility of other residents. Proceeding further, it is possible for a member to leave such an association, and so to no longer attract the force of such an ordinance. In the event that a member is evicted from city housing, this denies access only to this category of housing, and imposes no restriction on residence elsewhere.

In light of the considerations above, it cannot be said that the provision in this case is a form of discrimination with no rational basis. Therefore, the provision in this case is not in violation of Constitution art. 14(1).

The interest that is restricted in this case, at the end of the day, is limited to the interest of organized crime association members in the supply of housing for welfare purposes. In light of the points above, it is clear that the restriction imposed by the provision in this case is rationally connected to and necessary for public welfare purposes. Accordingly, the provision in this case is not in violation of Constitution art. 22(1).

Finally, in view of Y1's move to other accomodation and the undertaking in the covenant recited above and other circumstances, we can conclude without addressing other issues that application of the provision to terminate the use of the residence and parking facilities in this case is not a violation of Constitution arts. 14(1) or 22(1).

The decision above is consistent with Supreme Court, Grand Bench, May 27, 1964, 昭和37年(オ)1472, 18(4) Minshū 676, and with Supreme Court, Grand Bench, July 1, 1992, 昭和61年(行ツ)11, 46(5) Minshū 437.

The disposition stated in this case is the unanimous opinion of the judges sitting in this case.