Milwaukee City Housing Authority v. Felton Cobb

2015 WI 27
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2207
COMPLETE TITLE: Milwaukee City Housing Authority,
Plaintiff-Respondent-Petitioner,
v.
Felton Cobb,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 354 Wis. 2d 603, 849 N.W.2d 920
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 70
OPINION FILED: March 12, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Pedro A. Colon
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J. dissents. (Opinion filed)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by John J. Heinen, assistant city attorney, with whom on
the brief was Grant F. Langley, Milwaukee city attorney.
For the defendant-appellant, the cause was argued by
Jeffery R. Myer, with whom on the brief was April A.G. Hartman,
and Legal Action of Wisconsin, Inc., Milwaukee.
An amicus curiae brief was filed by Lisa L. Walker and
Housing and Development Law Institute, Washington, D.C., on
behalf of the Housing and Development Law Institute.
An amicus curiae brief was filed by Heiner Giese and Giese
& Weden, S.C., Milwaukee, on behalf of Association of
Southeastern Wisconsin, Inc., and Wisconsin Association of
Housing Authorities.
2
2015 WI 27
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2207
(L.C. No. 2013SC20628)
STATE OF WISCONSIN : IN SUPREME COURT
Milwaukee City Housing Authority,
Plaintiff-Respondent-Petitioner,
FILED
v. MAR 12, 2015
Felton Cobb, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals, Milwaukee City
Housing Authority v. Cobb, 2014 WI App 70, 354 Wis. 2d 603, 849
N.W.2d 920, which reversed the Milwaukee County circuit court's1
judgment of eviction and restitution order against Felton Cobb
("Cobb").
¶2 Cobb lives in federally subsidized housing. His
landlord, the Milwaukee City Housing Authority ("Housing
Authority"), brought an eviction action against him because he
1
The Honorable Pedro Colon presided.
No. 2013AP2207
violated the terms of his lease by engaging in "drug-related
criminal activity"2——specifically, he smoked marijuana inside of
his apartment. Cobb argues that he may not be evicted because
he was not given an opportunity, required by Wis. Stat.
§ 704.17(2)(b) (2011-12),3 to "take[] reasonable steps to remedy
2
The lease defines "drug-related criminal activity" to mean
"the illegal manufacture, sale, distribution, use or possession
with intent to manufacture, sell, distribute or use of a
controlled substance[.]" Federal housing law uses a nearly
identical definition: "[T]he term 'drug-related criminal
activity' means the illegal manufacture, sale, distribution,
use, or possession with intent to manufacture, sell, distribute,
or use, of a controlled substance (as defined in section 802 of
title 21)." 42 U.S.C. § 1437d(l). Cobb does not dispute that
smoking marijuana is engaging in drug-related criminal activity.
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Wisconsin Stat.
§ 704.17(2)(b) provides in full:
If a tenant under a lease for a term of one year
or less, or a year-to-year tenant, commits waste or a
material violation of s. 704.07 (3) or breaches any
covenant or condition of the tenant's lease, other
than for payment of rent, the tenant's tenancy is
terminated if the landlord gives the tenant a notice
requiring the tenant to remedy the default or vacate
the premises on or before a date at least 5 days after
the giving of the notice, and if the tenant fails to
comply with such notice. A tenant is deemed to be
complying with the notice if promptly upon receipt of
such notice the tenant takes reasonable steps to
remedy the default and proceeds with reasonable
diligence, or if damages are adequate protection for
the landlord and the tenant makes a bona fide and
reasonable offer to pay the landlord all damages for
the tenant's breach. If within one year from the
giving of any such notice, the tenant again commits
waste or breaches the same or any other covenant or
condition of the tenant's lease, other than for
payment of rent, the tenant's tenancy is terminated if
the landlord, prior to the tenant's remedying the
(continued)
2
No. 2013AP2207
the default."4 Cobb does not challenge the Housing Authority's
right to issue a notice of eviction in this case. Rather, he
argues that § 704.17(2)(b) required the notice of eviction to
provide him with an opportunity to remedy, or "cure," his lease
violation in order to avoid eviction.
¶3 The Housing Authority argues that it need not provide
Cobb with an opportunity to take reasonable steps to remedy the
default because federal housing law preempts Wis. Stat.
§ 704.17(2)(b) in this case. Specifically, the Housing
Authority argues that § 704.17(2)(b) is preempted by 42 U.S.C.
§ 1437d(l)(6)5 such that no right to cure or remedy exists for a
tenant who engaged in drug-related criminal activity. The
Housing Authority asserts that its preemption argument is
supported by the fact that § 1437d(l)(6) requires public housing
waste or breach, gives the tenant notice to vacate on
or before a date at least 14 days after the giving of
the notice.
4
Wisconsin Stat. § 704.17(2)(b) is sometimes known as a
"right to cure" statute.
5
Section 1437d(l)(6) of 42 U.S.C. states:
Each public housing agency shall utilize leases
which . . . provide that any criminal activity that
threatens the health, safety, or right to peaceful
enjoyment of the premises by other tenants or any
drug-related criminal activity on or off such
premises, engaged in by a public housing tenant, any
member of the tenant's household, or any guest or
other person under the tenant's control, shall be
cause for termination of tenancy[.]
3
No. 2013AP2207
authorities to use leases that state that engaging in drug-
related criminal activity is grounds for eviction.
¶4 We hold that 42 U.S.C. § 1437d(l)(6) preempts the
right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a
public housing tenant is evicted for engaging in "drug-related
criminal activity" within the meaning of 42 U.S.C. § 1437d(l).6
Accordingly, we reverse the court of appeals' decision.
I. FACTUAL BACKGROUND
¶5 Cobb resides in Merrill Park, a publicly subsidized
housing building operated by the Housing Authority. The Housing
Authority is a public body, organized and chartered under Wis.
Stat. § 66.1201 for the purpose of operating a low-income
housing program under the United States Housing Act of 1937, 42
U.S.C. § 1437, et seq. The Housing Authority receives funding
from the United States Department of Housing and Urban
Development ("HUD"). The Housing Authority's funding from HUD
is contingent on compliance with federal laws that govern public
housing. See 42 U.S.C. § 1437d(j)(4)(A). One such law requires
each public housing agency, including the Housing Authority, to
provide in its lease that "any drug-related criminal activity on
or off [the housing] premises, engaged in by a public housing
tenant, . . . shall be cause for termination of tenancy." 42
6
To be clear, we do not hold that Wis. Stat.
§ 704.17(2)(b)'s right to remedy is preempted under all
circumstances. Our holding is limited to a circumstance in
which drug-related criminal activity provides the basis for a
public housing eviction action.
4
No. 2013AP2207
U.S.C. § 1437d(l)(6). Accordingly, Cobb's lease states that a
tenant "shall not engage in . . . [a]ny drug-related or violent
criminal activity, on or off the public housing development's
property. Such activity shall be cause for termination of
tenancy."
¶6 On June 5, 2013, Housing Authority public safety
officer James Darrow ("Officer Darrow") was patrolling the
hallways of Merrill Park when he smelled the scent of smoked
marijuana on the fourth floor of the building. Officer Darrow
checked several doors and determined that the marijuana odor was
strongest outside the door of unit 414, where only Cobb resided.
Officer Darrow knocked on Cobb's door, and Cobb opened the door
about 12 inches. The smell of marijuana intensified in the
hallway after the door was opened. When Officer Darrow inquired
about the smell, Cobb initially stated that the odor was from
bug spray, and minutes later he attributed the smell to his
cooking. Cobb refused to allow Officer Darrow to enter the
apartment. Officer Darrow did not observe Cobb using or
possessing marijuana. Officer Darrow did not contact police to
investigate further because in his experience, residents usually
dispose of an illegal substance before police arrive. However,
based on his interaction with Cobb and 14 years of experience as
a public safety officer, Officer Darrow determined that Cobb was
smoking marijuana.
¶7 On June 9, 2013, the Housing Authority notified Cobb
that he violated the terms of his lease by engaging in illegal
drug use on June 5. On June 26, 2013, the Housing Authority
5
No. 2013AP2207
provided Cobb with a 14-day notice of eviction for engaging in
illegal drug use. This eviction notice did not provide Cobb
with an opportunity to remedy or cure the lease violation. Cobb
concedes that smoking marijuana is grounds for eviction because
it is "drug-related criminal activity" as defined in his lease.
Thus, our analysis focuses on whether Cobb has a right under
Wis. Stat. § 704.17(2)(b) to remedy or cure the violation to
avoid eviction, not whether a lease violation occurred in the
first instance.
II. PROCEDURAL POSTURE
¶8 On July 18, 2013, the Housing Authority filed an
eviction action against Cobb in Milwaukee County circuit court.
In his answer to the eviction complaint, Cobb alleged that he
could not be evicted because he was not given a five-day
opportunity, required by Wis. Stat. § 704.17(2)(b), to remedy
the breach of the lease. Cobb also filed a motion to dismiss
the eviction action, arguing that the facts alleged in the
complaint were insufficient to prove that he smoked marijuana.
On August 20, 2013, the circuit court held a hearing on Cobb's
motion to dismiss the action to determine whether he in fact
smoked marijuana. After hearing testimony from Officer Darrow
and Cobb, the court found that Officer Darrow was more credible
than Cobb and that the Housing Authority proved by a
preponderance of the evidence that Cobb engaged in illegal drug
activity in violation of his lease. The court scheduled a
second hearing to consider whether Cobb had a five-day right
6
No. 2013AP2207
under § 704.17(2)(b) to remedy or cure the lease violation to
avoid eviction.
¶9 On September 17, 2013, the circuit court conducted the
second hearing. The circuit court held that Cobb had no right
to remedy his lease violation because federal housing law
preempted the right to remedy under Wis. Stat. § 704.17(2)(b).
Relying on Department of Housing and Urban Development v.
Rucker, 535 U.S. 125 (2002), and Scarborough v. Winn Residential
L.L.P./Atlantic Terrace Apartments, 890 A.2d 249 (D.C. 2006),
the court concluded that there "doesn't have to be a cure once
criminal activity is found." Further, the court stated that
"the odor of marijuana . . . can lead to reasonable suspicion of
criminal activity." The court issued a restitution order and
writ of eviction.
¶10 On October 1, 2013, Cobb filed a notice of appeal.7 On
May 28, 2014, the court of appeals reversed the circuit court's
eviction judgment and restitution order. The court of appeals
held that Cobb had to be given a five-day right to cure his
lease violation because Wis. Stat. § 704.17(2)(b) was not
preempted by federal law. The court of appeals thus held that
7
Cobb also appealed the circuit court's denial of his
motion for reconsideration. The motion argued that the circuit
court should have applied the "clear and convincing evidence"
burden of proof, rather than the "preponderance of the evidence"
standard, when determining whether he smoked marijuana. The
court of appeals determined that Cobb had not properly appealed
this issue. Milwaukee City Housing Authority v. Cobb, 2014 WI
App 70, ¶1 n.2, 354 Wis. 2d 603, 849 N.W.2d 920. This issue is
not before us.
7
No. 2013AP2207
Cobb could not be evicted because the circuit court lacked
competency over the eviction action. Specifically, the court of
appeals concluded that Cobb could not be evicted because the
Housing Authority had filed the eviction action without giving
Cobb the five days to remedy his lease violation provided by
§ 704.17(2)(b).
¶11 On June 26, 2014, the Housing Authority filed a
petition for review, which we granted on September 18, 2014.
The sole issue before us is whether 42 U.S.C. § 1437d(l)(6)
preempts the right-to-remedy provision of Wis. Stat.
§ 704.17(2)(b) when a public housing tenant is evicted for
engaging in "drug-related criminal activity" within the meaning
of 42 U.S.C. § 1437d(l).
III. STANDARD OF REVIEW
¶12 The present case requires us to determine whether a
federal law preempts a state statute. We determine whether
federal law preempts state law independently of the
determinations made by the circuit court and court of appeals.8
Int'l Ass'n of Machinists & Aerospace Workers v. U.S. Can Co.,
150 Wis. 2d 479, 487, 441 N.W.2d 710 (1989). Our discussion of
preemption will require us to interpret statutes. Statutory
interpretation presents a question of law that we review de
novo. Megal Dev. Corp. v. Shadof, 2005 WI 151, ¶8, 286
Wis. 2d 105, 705 N.W.2d 645. "[W]e have repeatedly held that
8
We are not asked to defer to an agency's determination
regarding preemption.
8
No. 2013AP2207
statutory interpretation 'begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.'" State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citations omitted). "Statutory language is given its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Id. (citations omitted). We
will also interpret the parties' lease, which we do de novo.
Walters v. Nat'l Properties, LLC, 2005 WI 87, ¶6, 282
Wis. 2d 176, 699 N.W.2d 71.
IV. ANALYSIS
¶13 "Congress' power to pre-empt state law is derived from
the Supremacy Clause of Art. VI of the Federal Constitution."
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985) (citing
Gibbons v. Ogden, 9 Wheat. 1 (1824)). Courts presume that state
law is not preempted unless preemption was the "'clear and
manifest purpose of Congress.'" Miller Brewing Co. v. Dep't of
Indus., Labor & Human Relations, Equal Rights Div., 210
Wis. 2d 26, 35, 563 N.W.2d 460 (1997) (quoting Medtronic, Inc.
v. Lohr, 518 U.S. 470, 485 (1996)) (quotation marks omitted).
Federal law preempts state law under any of the following
circumstances: (1) a federal law explicitly provides that it
preempts state law; (2) the "scheme of federal regulation [is]
'so pervasive as to make reasonable the inference that Congress
left no room for the States to supplement it'"; (3) federal law
and state law conflict such that compliance with both statutes
9
No. 2013AP2207
is a "'physical impossibility'"; or (4) state law "'stan[ds] as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.'" Barnett Bank of Marion
Cnty., N.A. v. Nelson, 517 U.S. 25, 31 (1996) (citations and
quoted sources omitted). The Housing Authority relies on only
the fourth form of preemption, arguing that in this case the
right-to-remedy provision in Wis. Stat. § 704.17(2)(b) stands as
an obstacle to the accomplishment and execution of Congress'
goal and chosen method of providing drug-free public housing.
¶14 A state law stands as an obstacle to the
accomplishment and execution of Congress' objectives if it
conflicts with Congress' goal or chosen method for achieving
that goal. See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494
(1987) (citing Mich. Canners & Freezers Ass'n v. Agric. Mktg. &
Bargaining Bd., 467 U.S. 461, 477 (1984)). A state law is
preempted "only 'to the extent that it actually conflicts with
federal law.'" Dalton v. Little Rock Family Planning Servs.,
516 U.S. 474, 476 (1996) (citations omitted). To determine
whether a state statute conflicts with a federal law, we first
interpret the laws and then determine whether they conflict.
Megal Dev. Corp., 286 Wis. 2d 105, ¶38 (citing Perez v.
Campbell, 402 U.S. 637, 644 (1971)).
A. The Federal and State Provisions
¶15 We first turn to the purposes and objectives of the
federal law at issue. "With drug dealers 'increasingly imposing
a reign of terror on public and other federally assisted low-
income housing tenants,' Congress passed the Anti–Drug Abuse Act
10
No. 2013AP2207
of 1988." Rucker, 535 U.S. at 127 (quoting § 5122, 102 Stat.
4301, 42 U.S.C. § 11901(3) (1994 ed.)). This Act states that:
Each public housing agency shall utilize leases
which . . . (6) provide that any criminal activity
that threatens the health, safety, or right to
peaceful enjoyment of the premises by other tenants or
any drug-related criminal activity on or off such
premises, engaged in by a public housing tenant, any
member of the tenant's household, or any guest or
other person under the tenant's control, shall be
cause for termination of tenancy.
42 U.S.C. § 1437d(l)(6). Section 1437d(l)(6) "unambiguously
requires lease terms that vest local public housing authorities
with the discretion to evict tenants for the drug-related
activity of household members and guests . . . ." Rucker, 535
U.S. at 130. "Thus, any drug-related activity engaged in by the
specified persons is grounds for termination." Id. at 131.
However, this "statute does not require the eviction of any
tenant . . . . Instead, it entrusts that decision to the local
public housing authorities . . . ." Id. at 133-34.
¶16 "Congress enacted the Anti–Drug Abuse Act of 1988,
with the objective of reducing drug-related crime in public
housing and ensuring 'public and other federally assisted low-
income housing that is decent, safe, and free from illegal
drugs.'" Boston Hous. Auth. v. Garcia, 871 N.E.2d 1073, 1078
(Mass. 2007) (quoting Rucker, 535 U.S. at 134). See also Hous.
Auth. of City of Norwalk v. Brown, 19 A.3d 252, 258-59 (Conn.
App. 2011) ("Congress declared that th[e] purposes and
objectives [of the Anti-Drug Abuse Act] are 'to provide public
and other federally assisted low-income housing that is decent,
11
No. 2013AP2207
safe, and free from illegal drugs.'" (quoting Scarborough, 890
A.2d at 256)).
¶17 To achieve public housing that is decent, safe, and
free from illegal drugs, Congress required public housing
authorities to retain in their leases the power to evict tenants
for any drug-related criminal activity. See Scarborough, 890
A.2d at 256-57; Boston Hous. Auth., 871 N.E.2d at 1078. By
passing that requirement, "Congress enacted a straightforward
practical method of dealing with a serious public safety
problem." City of S. San Francisco Hous. Auth. v. Guillory, 49
Cal. Rptr. 2d 367, 371 (Cal. App. Dep't Super. Ct. 1995). At
issue is whether Wis. Stat. § 704.17(2)(b) is in conflict with
the accomplishment and execution of the objectives of the
federal law.
¶18 The Wisconsin statute at issue provides:
If a tenant . . . breaches any covenant or condition
of the tenant's lease, . . . the tenant's tenancy is
terminated if the landlord gives the tenant a notice
requiring the tenant to remedy the default or vacate
the premises on or before a date at least 5 days after
the giving of the notice, and if the tenant fails to
comply with such notice.
Wis. Stat. § 704.17(2)(b). In its two briefs to this court, the
Housing Authority questions whether the right-to-remedy
provision in § 704.17(2)(b) can apply to drug-related criminal
activity, even if this provision is not preempted.9 We question
9
In response to questions posed by this court at oral
argument, the Housing Authority argued that Wis. Stat.
§ 704.17(2)(b) does not apply to criminal activity, regardless
of whether it is preempted.
12
No. 2013AP2207
whether the legislature intended for the right-to-remedy
provision to apply to drug-related criminal activity or criminal
activity in general. We also question whether past criminal
activity is capable of being "remedied." See Brown, 19 A.3d at
256-59 (holding that Connecticut's statute providing a right to
"remedy by repair" a lease violation did not apply to drug-
related criminal activity). However, we need not resolve this
issue today because we conclude that 42 U.S.C. § 1437d(l)(6)
preempts the right-to-remedy provision of Wis. Stat.
§ 704.17(2)(b) when a public housing tenant is evicted for
engaging in "drug-related criminal activity" within the meaning
of 42 U.S.C. § 1437d(l).
B. Whether Wis. Stat. § 704.17(2)(b) Conflicts
with Federal Law
¶19 Cobb argues that Wis. Stat. § 704.17(2)(b) is not
preempted. He argues that federal housing law does not conflict
with § 704.17(2)(b). He contends that a right to remedy drug-
related criminal activity is consistent with Congress' goal of
providing drug-free public housing because a tenant must cease
such activity in order to remedy it. He also contends that
compliance with both federal law and § 704.17(2)(b) is possible
and that the required termination notices under both laws are
consistent. He identifies several statements of federal policy
that, he contends, demonstrate that Congress did not intend
preemption in the present case. Cobb further argues that his
lease requires the Housing Authority to follow § 704.17(2)(b).
13
No. 2013AP2207
Specifically, Cobb concedes that illegal drug use may be a basis
for termination, but he argues that the termination provisions
under § 704.17(2)(b) must be followed and that those provisions
give Cobb the right to cure his lease violation to avoid
eviction.
¶20 Cobb relies on Housing Authority of Covington v.
Turner, 295 S.W.3d 123 (Ky. Ct. App. 2009), a split decision
from a Kentucky intermediate appellate court. In that case, a
public housing tenant was evicted because her nephew, who stayed
with her every other weekend, stored cocaine and drug
paraphernalia in the room where he kept his belongings. Turner,
295 S.W.3d at 124. The tenant forwarded an "innocent tenant"
defense and argued that the housing authority had not met its
burden of proof. Specifically, the tenant testified that she
was unaware that drugs were being kept in her apartment. Id. A
provision in her lease mirrored the language of 42 U.S.C.
§ 1437d(l)(6) and stated that she could be evicted if any guest
or member of her household engaged in drug-related criminal
activity. Id. at 125. The tenant argued that she could not be
evicted because she was not given an opportunity, required by a
Kentucky statute, to remedy the lease violation. Id. at 124-25.
The landlord argued that the statute was preempted, but the
court unanimously concluded that the landlord had failed to
adequately demonstrate that it had weighed the policy
considerations behind the federal statute. Id. at 125, 128.
¶21 In a 2:1 decision, the Kentucky Court of Appeals
concluded that the state statute was not preempted. Id. One
14
 No. 2013AP2207
objective of the federal Anti-Drug Abuse Act of 1988 is to
"discourage[e] illegal drug use on public housing premises."
Id. at 127. Two judges concluded that a right to remedy illegal
drug activity is consistent with that objective because a tenant
who has "'been given the opportunity to remedy may be among the
most likely of tenants to prevent the situation from recurring,
thereby furthering the purposes of and objectives of the
[federal] law.'" Id. A concurring judge refused to join the
two-judge majority opinion concerning preemption. Id. at 128
(Moore, J., concurring). The judge ultimately concurred with
the majority opinion's result, however, because the housing
authority had failed to demonstrate that it weighed the policy
considerations behind the federal statute. Id. at 129-30
(Moore, J., concurring).
¶22 Regarding preemption, the concurring judge concluded
that "there is no doubt" that the state statute is preempted by
the federal law. Id. at 128 (Moore, J., concurring). She
reasoned that the right to remedy provided by the state statute
is contrary to the Anti-Drug Abuse Act, which clearly allows
tenants to be evicted for any drug-related criminal activity.
Id. (Moore, J., concurring). The judge then listed several
congressional findings to support the federal law's "'one-
strike' policy," which was designed to eradicate illegal drug
activity in public housing. Id. at 128-29 (Moore, J.,
concurring) (quoting 42 U.S.C. § 11901). The judge concluded
that Congress' intent behind the Act was "to look out for the
best interests of all residents in housing developments
15
No. 2013AP2207
receiving federal funding. All tenants should be able to feel
secure in their homes and live in decent and safe housing,
without the fear of drug-related crimes often associated with
public housing." Id. at 128 (Moore, J., concurring). Cobb
urges this court to adopt the reasoning of the Kentucky
intermediate appellate court's two-judge majority opinion and
conclude that the right to remedy is not preempted by federal
law.
¶23 On the other hand, the Housing Authority argues
federal housing law preempts the right to remedy a lease
violation under Wis. Stat. § 704.17(2)(b) in the present case.
The Housing Authority contends that it has the power under
federal law to evict Cobb for engaging in any drug-related
criminal activity. According to the Housing Authority, a right
to remedy illegal drug activity would "severely frustrate"
Congress' requirement that the Housing Authority retain the
power to evict a tenant for engaging in such activity. The
Housing Authority also argues that the goal of the Anti-Drug
Abuse Act is to provide drug-free public housing. A right to
remedy drug-related criminal activity, the Housing Authority
argues, would frustrate Congress' goal of providing drug-free
public housing. The Housing Authority relies heavily on
Scarborough and Boston Housing Authority, in which the high
courts of the District of Columbia and Massachusetts,
respectively, held that federal housing law preempted statutes
that provided defenses against eviction.
16
No. 2013AP2207
¶24 In Scarborough, a tenant was evicted for engaging in
"'criminal activity that threatens the health, safety, or right
to peaceful enjoyment of the premises . . . .'"10 Scarborough,
890 A.2d at 251, 252 n.1. The tenant's criminal activity was
possession of two unregistered firearms and unregistered
ammunition in her apartment.11 Id. at 251-52 & n.2, 257. The
tenant argued that she could not be evicted because she was not
given a 30-day opportunity, provided by a District of Columbia
code, to cure the lease violation. Id.
¶25 The District of Columbia Court of Appeals unanimously
held that the right to cure was preempted because "application
of the District's cure opportunity for criminal violations that
threaten the safety or peace of other tenants would 'stand as an
obstacle to the accomplishment and execution of the full
10
Although the tenant in Scarborough was not evicted for
drug activity, both she and Cobb received eviction notices for
violating a lease term that mirrored 42 U.S.C. § 1437d(l)(6).
Scarborough v. Winn Residential L.L.P./Atl. Terrace Apartments,
890 A.2d 249, 255-56 (D.C. 2006). Section 1437d(l)(6) requires
a public housing lease to "provide that any criminal activity
that threatens the health, safety, or right to peaceful
enjoyment of the premises by other tenants or any drug-related
criminal activity on or off such premises, engaged in by a
public housing tenant, . . . shall be cause for termination of
tenancy." 42 U.S.C. § 1437d(l)(6). Thus, that section
associates drug-related criminal activity with criminal activity
that breaches the peace.
11
The tenant's boyfriend had used a firearm to fatally
shoot someone in her apartment. Scarborough, 890 A.2d at 252.
However, the tenant was evicted for possessing unregistered
firearms and ammunition, not for the shooting. Id. at 251-52 &
n.2.
17
No. 2013AP2207
purposes and objectives of Congress.'" Id. at 255. Congress
intended to provide "'federally assisted low-income housing that
is decent, safe, and free from illegal drugs.'" Id. at 256
(quoting 42 U.S.C. § 11901(1)). To that end, Congress required
public housing authorities to use leases that provide that
"[a]ny criminal activity that threatens the health, safety, or
right to peaceful enjoyment of the premises by other residents"
is grounds for eviction. Id. An opportunity to cure the
criminal activity "would substitute for the landlord's
discretion a mandatory second-strike opportunity for a tenant to
stay eviction by discontinuing, or not repeating, the criminal
act . . . ." Id. at 257. Therefore, a second-strike
opportunity "would frustrate the purpose of an anticrime
provision that permits eviction for 'any' criminal
activity [that threatens the safety or peace of other tenants]."
Id.
¶26 In Boston Housing Authority, a public housing
authority sought to evict a tenant because two of her adult sons
who lived with her were arrested for possessing marijuana.
Boston Hous. Auth., 871 N.E.2d at 1075-76. Mirroring 42 U.S.C.
§ 1437d(l)(6), the tenant's lease stated that she could be
evicted if any member of her household engaged in drug-related
criminal activity. Id. at 1075. The tenant tried to defend
against the eviction action by relying on a Massachusetts
statute that provided an "innocent tenant" defense against
eviction. Id. at 1075-76. She argued that she was an "innocent
18
No. 2013AP2207
tenant" because she was unaware of and could not control her
sons' drug-related criminal activity. Id. at 1076.
¶27 The Massachusetts Supreme Judicial Court unanimously
held that federal housing law preempted the state statute's
"innocent tenant" defense. Id. at 1078. Congress enacted the
Anti-Drug Abuse Act of 1988 to ensure that public housing would
be "'decent, safe, and free from illegal drugs.'" Id. at 1078
(quoting Rucker, 535 U.S. at 134). To that end, Congress
"required that housing authorities use clauses in their leases
that permit the termination of a tenant's lease for crimes
committed by household members, even where a tenant had no
knowledge of and was not at fault for a household member's
criminal activity." Id. Allowing the "innocent tenant"
statutory defense to override a housing authority's discretion
to evict "would run afoul of and substantially interfere with
the congressional objective. It is therefore preempted." Id.
¶28 We hold that Wis. Stat. § 704.17(2)(b) is preempted in
the present case because it "'stan[ds] as an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress.'" See Barnett Bank, 517 U.S. at 31 (quoting Hines
v. Davidowitz, 312 U.S. 52, 67 (1941)). We agree with the
19
No. 2013AP2207
reasoning of Scarborough and Boston Housing Authority.12 A right
to cure a lease violation that constitutes drug-related criminal
activity conflicts with the federal Anti-Drug Abuse Act in two
related respects. First, a right to cure past illegal drug
activity is counter to Congress' goal of providing drug-free
public housing. Second, a right to cure past illegal drug
activity is in conflict with Congress' method of achieving that
goal by allowing eviction of tenants who engage in drug-related
criminal activity.
¶29 Permitting Cobb to avoid eviction by promising to
cease his illegal drug use "would run afoul of and substantially
interfere with the congressional objective" of providing drug-
free public housing. See Boston Hous. Auth., 871 N.E.2d at
1078. Tenants will have an incentive not to use illegal drugs
in the first instance if they can be evicted for, and given no
right to cure, drug-related criminal activity. The potential to
be evicted for any drug-related criminal activity, including a
12
We disagree with Cobb that Boston Housing Authority is
distinguishable because it did not involve a right-to-remedy
statute. Courts have held that the Anti-Drug Abuse Act preempts
a variety of state laws that allow tenants to avoid eviction for
drug-related criminal activity. E.g., Ross v. Broadway Towers,
Inc., 228 S.W.3d 113, 123-24 (Tenn. Ct. App. 2006) (holding that
state "estoppel" defense against eviction is preempted); City of
S. San Francisco Hous. Auth. v. Guillory, 49 Cal. Rptr. 2d 367,
371-72 (Cal. App. Dep't Super. Ct. 1995) (holding that state
statute that created a "reasonable cause" standard for eviction
is preempted); Hous. Auth. & Urban Redevelopment Agency of City
of Atl. City v. Spratley, 743 A.2d 309, 313-14 (N.J. Super. Ct.
App. Div. 1999) (holding that state statute that prohibits
eviction of "blameless tenants" is preempted).
20
No. 2013AP2207
first offense, provides a powerful incentive to avoid such
activity. See Rucker, 535 U.S. at 134 (citing Pacific Mut. Life
Ins. Co. v. Haslip, 499 U.S. 1, 14 (1991)) ("Strict liability
maximizes deterrence . . . ."). By contrast, if a landlord were
required to give a "free pass" on a tenant's first drug offense,
tenants would have little incentive not to use illegal drugs
because if they are caught, they can just promise not to do it
again. For the other tenants of the building, this after-the-
fact promise is far from a remedy for completed criminal
activity and "'stan[ds] as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.'"
See Barnett Bank, 517 U.S. at 31 (quoting Hines, 312 U.S. at
67). The objective of Congress is to provide safe, drug-free
public housing, not to provide housing that allows criminal drug
activity so long as the offender promises not to do it again.
¶30 Cobb's argument to the contrary is unpersuasive. Cobb
argues that an opportunity to remedy a first-offense drug
violation is consistent with Congress' goal of drug-free public
housing, because a tenant remedies a drug offense by ceasing to
engage in drug-related activity. Simply stated, Cobb suggests
that a tenant helps to achieve drug-free housing by ceasing
drug-related activity. The Kentucky Court of Appeals' two-judge
majority opinion in Turner used similar reasoning in holding
that its right-to-remedy statute was not preempted. Turner, 295
S.W.3d at 127. This line of reasoning is flawed because it
ignores the fact that a tenant who ceases drug-related activity
has already been caught engaging in such illegal activity.
21
No. 2013AP2207
Congress did not merely intend to prevent repeat drug offenses
in public housing. Congress intended to eliminate all drug-
related criminal activity in public housing, which includes
first-time or repeat drug offenses. See 42 U.S.C. § 11901(1)
(expressing intent to provide public housing that is "free from
illegal drugs") (emphasis added). An opportunity to avoid
eviction for a first-offense drug violation conflicts with that
congressional intent.13
¶31 In addition to conflicting with Congress' goal of
providing drug-free public housing, a right to remedy drug-
related criminal activity conflicts with Congress' chosen method
of achieving that goal: allowing public housing authorities to
evict tenants for engaging in any drug-related criminal
activity. This additional conflict militates in favor of
preemption. See Int'l Paper Co., 479 U.S. at 494 (citation
omitted) ("A state law also is pre-empted if it interferes with
the methods by which the federal statute was designed to reach
[Congress'] goal.").
¶32 The Anti-Drug Abuse Act "unambiguously requires lease
terms that vest local public housing authorities with the
discretion to evict tenants for the drug-related activity of
household members and guests . . . ." Rucker, 535 U.S. at 130.
13
In fact, the right to cure statute could, depending on
the circumstances, allow a tenant to engage in drug-related
criminal activity multiple times. Thus, the right to cure
statute frustrates Congress' goal of providing drug-free public
housing.
22
No. 2013AP2207
A right to remedy drug-related criminal activity "would
substitute for the landlord's discretion a mandatory second-
strike opportunity for a tenant to stay eviction by
discontinuing, or not repeating, the criminal act . . . ."
Scarborough, 890 A.2d at 257. If the Housing Authority were
required to provide a tenant with an opportunity to remedy a
first-offense drug violation, the Housing Authority "would thus
have lost the ability to terminate a tenant who violated her
lease by . . . engaging in drug related criminal activity, an
ability Congress intends to preserve for housing
authorities . . . ." Boston Hous. Auth., 871 N.E.2d at 1078.
The right to cure under state law removes the Housing
Authority's discretion to evict afforded under federal law and
instead requires that the Housing Authority allow a tenant a
second chance. Simply stated, Wis. Stat. § 704.17(2)(b)'s right
to cure undermines the federal law's intent to vest the power to
evict in the Housing Authority. Section 704.17(2)(b)'s right to
cure is thus preempted in the present case. See id.
¶33 Cobb argues that the right to cure has a "minimal"
effect on a public housing authority's power to evict tenants
who engage in drug-related criminal activity. For support, he
contends that a tenant who receives a notice to remedy-or-vacate
must either cease the lease-breaching behavior within five days
or vacate the premises. He further contends that a tenant may
be evicted for a second breach of the lease without being given
an opportunity to cure the second breach. Cobb's argument
appears to mean that the right to cure is not preempted because
23
No. 2013AP2207
it does not substantially interfere with Congress' objectives.
See Barnett Bank, 517 U.S. at 33-34 (explaining that a state
statute is not preempted if it "does not prevent or
significantly interfere with" the exercise of federal power).
We disagree. A right to remedy drug-related criminal activity
would significantly interfere with Congress' objectives because
it would allow a tenant to avoid an eviction and run counter to
the objective of providing drug-free public housing. See
Scarborough, 890 A.2d at 257-58 (holding that a tenant's right
to avoid eviction by curing criminal activity "would stand as a
pronounced obstacle to" and "undermine" congressional intent);
Boston Hous. Auth., 871 N.E.2d at 1078 (holding that an
"innocent tenant" defense against eviction for drug-related
activity "would run afoul of and substantially interfere with"
congressional intent).
¶34 To highlight the significance of allowing users of
illegal drugs to avoid eviction, we note the findings that
Congress made when adopting the Anti-Drug Abuse Act. "[P]ublic
and other federally assisted low-income housing in many areas
suffers from rampant drug-related or violent crime." 42 U.S.C.
§ 11901(2). "[D]rug dealers are increasingly imposing a reign
of terror on public and other federally assisted low-income
housing tenants." Id. at § 11901(3). "[T]he increase in drug-
related and violent crime not only leads to murders, muggings,
and other forms of violence against tenants, but also to a
deterioration of the physical environment that requires
substantial government expenditures." Id. at § 11901(4).
24
No. 2013AP2207
Congress' efforts to eliminate those serious problems would be
significantly obstructed if a tenant who engages in drug-related
criminal activity could avoid eviction by exercising a right to
cure past illegal drug activity.
¶35 Cobb argues that Wis. Stat. § 704.17(2)(b) does not
conflict with federal law because the Housing Authority could
have complied with both laws. Cobb's reasoning is that federal
housing law allows, but does not require, the Housing Authority
to evict him. See Rucker, 535 U.S. at 133-34. Thus, Cobb
argues, the Housing Authority would not violate federal law by
giving him an opportunity to remedy his lease violation. This
argument is unpersuasive because it conflates two separate
grounds for preemption. See supra ¶13. A state law is
preempted if it stands as an obstacle to the accomplishment and
execution of Congress' objectives, even if compliance with both
state and federal law is possible. Barnett Bank, 517 U.S. at
31; Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141,
154-56 (1982). Moreover, while federal law does not require
eviction, Cobb recognizes that it certainly provides for
eviction. 42 U.S.C. § 1437d(l)(6). As Cobb also recognizes,
federal law endows the Housing Authority with the discretion to
promptly evict a tenant who engages in drug-related criminal
activity. Id. at § 1437d(l)(4)(A)(ii). As we discussed
earlier, the right to cure is preempted partly because it
thwarts that discretion by obliging a public housing authority
to provide an opportunity to cure past drug-related criminal
25
No. 2013AP2207
activity regardless of how heinous the offense was. See supra
¶¶31-32.
¶36 Cobb further contends that the termination notice
requirements under Wis. Stat. § 704.17(2)(b) and federal law are
not in conflict. Cobb argues that § 704.17(2)(b) requires a
termination notice of five days, which is well within the
applicable federal requirement of any reasonable length of time
not to exceed 30 days.14 See 42 U.S.C. § 1437d(l)(4)(A)(ii).
However, even if those time limits do not necessarily conflict,
§ 704.17(2)(b)'s right to remedy conflicts with federal law in
the present case for the reasons already stated.
¶37 For the foregoing reasons, we conclude that 42 U.S.C.
§ 1437d(l)(6) preempts the right-to-remedy provision of Wis.
Stat. § 704.17(2)(b) when a public housing tenant is evicted for
engaging in "drug-related criminal activity" within the meaning
of 42 U.S.C. § 1437d(l).
C. Cobb's Remaining Arguments
14
Cobb's argument relies on Meier v. Smith, 254 Wis. 70, 35
N.W.2d 452 (1948), in which this court held that a Wisconsin
statute requiring six months' notice prior to eviction did not
conflict with a federal statute requiring at least 60 days'
notice. We reasoned that the federal statute required a minimum
amount of notice and the Wisconsin statute did not go below that
minimum. Meier, 254 Wis. at 74-75. We also reasoned that the
Wisconsin statute "does not take any right from the landlord to
possession of property granted by [federal law]." Id. at 79.
Meier thus hurts Cobb's position. A right to remedy his lease
violation would deprive the Housing Authority of its right under
42 U.S.C. § 1437d(l)(6) to evict Cobb and take possession of his
housing unit.
26
No. 2013AP2207
¶38 Cobb makes several arguments in addition to his
argument that the right to remedy does not conflict with 42
U.S.C. § 1437d(l)(6). Although we have already determined that
the right to remedy conflicts with § 1437d(l)(6) in the present
case, we nevertheless briefly address these remaining arguments.
¶39 Cobb argues that his lease provides a right to remedy
his drug use. He relies on section 9.C. of his lease, which
requires the Housing Authority to provide termination notices in
accordance with Wis. Stat. § 704.17(2). Section 9.C. has
several express exceptions, including section 9.C.2., which
states that the Housing Authority "shall give written notice of
termination of the Lease as of: . . . 2. A reasonable time
commensurate with the exigencies of the situation (not to exceed
30 days) in the case of . . . any drug-related criminal
activity . . . ." Cobb argues that section 9.C.2. does not
eliminate the right to remedy but rather extends the five-day
notice period under § 704.17(2) to up to 30 days. However,
other lease provisions belie Cobb's argument. Section 6.J. of
the lease states that the Housing Authority will provide one
"written warning prior to a proposed termination of tenancy,
except . . . in the case of a violation of 5.Q. or a termination
per 9.C.2." Section 5.Q., which uses language that closely
follows 42 U.S.C. § 1437d(l)(6), prohibits a tenant from
engaging in "[a]ny activity that threatens the health, safety or
right to peaceful enjoyment of the premises . . . " or "[a]ny
drug-related or violent criminal activity. . . . Such activity
shall be cause for termination of tenancy." Thus, sections 6.J.
27
No. 2013AP2207
and 5.Q. plainly state that a written warning——i.e., a right to
remedy——does not apply to drug-related criminal activity.
¶40 Cobb relies on several statements of federal policy
for the proposition that the right to remedy is not preempted.
We find these arguments unpersuasive. Cobb points to the
preamble to a HUD rule, which amended HUD regulations to
strengthen public housing authorities' ability to evict tenants
who engaged in illegal drug use or other criminal activity.
Screening and Eviction for Drug Abuse and Other Criminal
Activity, 66 Fed. Reg. 28776-01 (May 24, 2001). The preamble
states that "[t]his final rule does not . . . preempt State law
within the meaning of Executive Order 13132." Id. at 28791.
However, that statement sheds no light on whether 42 U.S.C.
§ 1437d(l)(6) preempts state law.15
¶41 Cobb also relies on a HUD regulation that states that
"a notice to vacate which is required by State or local law may
be combined with, or run concurrently with, a notice of lease
termination under . . . this section." 24 C.F.R.
§ 966.4(l)(3)(iii). However, this regulation does not indicate
15
An earlier, proposed version of this rule stated that
federal housing policy created a "one strike" policy with
respect to illegal drug use. One–Strike Screening and Eviction
for Drug Abuse and Other Criminal Activity, 64 Fed. Reg. 40262-
01 (proposed July 23, 1999). The final version of this rule
does not use the phrase "one strike." Cobb argues that HUD's
omission of that phrase from the final version of this rule
further indicates that HUD did not intend for this rule to
preempt state law. However, 42 U.S.C. § 1437d(l)(6) preempts
state law regardless of whether this HUD rule does as well.
28
No. 2013AP2207
whether a state law may require a public housing authority to
provide an opportunity to remedy drug-related criminal activity.
¶42 Cobb relies on a letter issued in response to Rucker
by then-HUD Secretary Mel Martinez, which states that
"[e]viction should be the last option explored . . . ." Letter
from Mel Martinez, HUD Secretary, to Public Housing Directors
(Apr. 16, 2002). However, this letter does not shed any light
on whether a statutory right to cure may limit a public housing
authority's power to evict once it explores that option. See
Boston Hous. Auth., 871 N.E.2d at 1078-79 & n.14.
¶43 Finally, Cobb relies on a HUD guidance that provides,
"State or local law governing eviction procedures may give
tenants procedural rights in addition to those provided by
federal law. Tenants may rely on those state or local laws so
long as they have not been pre-empted by federal law." HUD
Directive No. 96–16, Notice PIH 96–16(HA) (April 12, 1996); see
also 24 C.F.R. § 247.6(c). Cobb argues that Wis. Stat.
§ 704.17(2)(b)'s right to cure is a procedural right allowed
under that HUD guidance. However, that HUD guidance expressly
states that local or state law cannot provide rights that are
preempted by federal law. We have already determined that
federal law preempts the right to cure in the present case. See
also Scarborough, 890 A.2d at 258 (holding that "[a]
'procedural' right to a second chance to refrain from criminal
activity endangering other tenants would conflict fundamentally
with" federal housing law).
29
No. 2013AP2207
¶44 In sum, for the reasons previously set forth as well
as those briefly addressed above, we reject Cobb's additional
arguments that Wis. Stat. § 704.17(2)(b)'s right to cure is not
preempted in the present case.
V. CONCLUSION
¶45 We hold that 42 U.S.C. § 1437d(l)(6) preempts the
right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a
public housing tenant is evicted for engaging in "drug-related
criminal activity" within the meaning of 42 U.S.C. § 1437d(l).
Accordingly, we reverse the court of appeals' decision.
By the Court.—The decision of the court of appeals is
reversed.
30
No. 2013AP2207.ssa
¶46 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The
Milwaukee City Housing Authority is attempting to evict Felton
Cobb, a disabled 62-year-old public housing tenant, because Cobb
smoked marijuana in his apartment. In deciding whether to
effectuate this eviction, the court must be mindful of two
important, sometimes conflicting, interests.
¶47 On the one hand, the goal of public and subsidized
housing programs is to provide low-income individuals with
"housing that is decent, safe, and free from illegal drugs."1
Eliminating drug-related criminal activity is a critical element
of pursuing that goal.
¶48 On the other hand, "federal law does not provide for
mandatory summary eviction [for drug-related criminal activity]
but vests in local authorities the discretion" to evict.2 In
exercising such discretion, local housing authorities are "to be
guided by compassion and common sense."3
¶49 Thus, public housing evictions based on drug-related
criminal activity require the court to engage in a difficult
balancing act. "[T]he Congressional intent is not to be overly
harsh on tenants . . . but to look out for the best interests of
1
Dep't of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 134
(2002) (citation omitted).
2
Housing Auth. of Covington v. Turner, 295 S.W.3d 123, 126
(Ky. Ct. App. 2009).
3
This quote comes from a letter issued to local housing
authorities by Mel Martinez, the former Secretary of the United
States Department of Housing and Urban Development. The letter,
dated April 16, 2002, was filed as an exhibit in support of
Cobb's motion to dismiss.
1
No. 2013AP2207.ssa
all residents in housing developments receiving federal
funding."4
¶50 I write separately to explain how I would balance the
significant interests at stake in the present case.
¶51 The instant case was briefed and argued as a
preemption case. Cobb asserts a right under a state law that
the Housing Authority claims is preempted. The majority opinion
rules in favor of the Housing Authority. I would rule in favor
of Cobb.
¶52 Even assuming that the state law at issue is preempted
(despite the presumption against preemption), I conclude that
Cobb's eviction is contrary to federal law. Federal law confers
on the Housing Authority the discretion to evict Cobb under the
circumstances presented in the instant case; it does not mandate
that the Housing Authority evict everyone who engages in drug-
related criminal activity.
¶53 Because the record before the court contains no
evidence that the Housing Authority exercised discretion in
evicting Cobb and because the parties did not argue the
discretion issue, I would remand the cause to the circuit court
to decide whether Cobb's eviction was a legitimate exercise of
the Housing Authority's discretion to evict on the basis of
drug-related criminal activity.
¶54 I briefly state the relevant facts.
4
Turner, 295 S.W.3d at 128 (Moore, J., concurring).
2
No. 2013AP2207.ssa
¶55 The Housing Authority filed an eviction action against
Cobb based on Cobb's violation of a lease provision prohibiting
drug-related criminal activity. The Housing Authority
determined that Cobb was engaged in drug-related criminal
activity after a public safety officer reported smelling
marijuana coming from Cobb's apartment and reported that the
smell became stronger when Cobb opened his door.
¶56 It is undisputed that Cobb did not receive notice from
the Housing Authority providing Cobb with five days to either
remedy the lease violation or vacate the premises. Such notice
is required under Wis. Stat. § 704.17(2)(b) (2011-12), which I
refer to as the five-day notice statute.5
¶57 Cobb contends that he cannot be evicted without
receiving the notice required by the five-day notice statute.
The Housing Authority disagrees, arguing that the five-day
notice statute is preempted insofar as it requires local housing
authorities to give tenants an opportunity to remedy drug-
related criminal activity.
¶58 The Housing Authority's preemption argument is
premised on an alleged conflict between 42 U.S.C. § 1437d(l)(6)
and the five-day notice statute.
¶59 42 U.S.C. § 1437d(l)(6) requires local housing
authorities to utilize leases that provide that "any drug-
related criminal activity . . . shall be cause for termination
of tenancy." This provision was enacted as part of a larger
5
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
3
No. 2013AP2207.ssa
effort to "provide public and other federally assisted low-
income housing that is decent, safe, and free from illegal
drugs."6
¶60 Importantly, 42 U.S.C. § 1437d(l)(6) does not mandate
eviction when a local housing authority determines that a tenant
is engaged in drug-related criminal activity. Instead, as the
Housing Authority acknowledges in the instant case, 42 U.S.C.
§ 1437d(l)(6) gives local housing authorities discretion to
evict on the basis of drug-related criminal activity.
¶61 The Housing Authority maintains that the five-day
notice statute is at odds with its discretion to evict on the
basis of drug-related criminal activity. Requiring the Housing
Authority to give tenants an opportunity to remedy drug-related
criminal activity, the Housing Authority reasons, would enable
tenants to avoid eviction regardless of whether a discretionary
determination has been made that eviction is appropriate under
the circumstances.
¶62 For purposes of this dissent, I assume that 42 U.S.C.
§ 1437d(l)(6) preempts the five-day notice statute. I therefore
assume that the Housing Authority has discretion to evict Cobb
for drug-related criminal activity without giving him an
opportunity to remedy his lease violation.
¶63 I conclude, however, that the record before the court
contains no evidence that the Housing Authority exercised
6
Rucker, 535 U.S. at 134 (citation omitted).
4
No. 2013AP2207.ssa
discretion in the present case. On the contrary, Cobb's
eviction appears to be "a blind application of the law."7
¶64 Under United States Supreme Court precedent and
federal regulations, blind application of the law does not
constitute a legitimate exercise of the discretion conferred by
42 U.S.C. § 1437d(l)(6). Thus, in my view, Cobb's eviction is
contrary to the federal law that the Housing Authority insists
is controlling.
¶65 I briefly review the federal regulation and the United
States Supreme Court opinion that inform my position.
¶66 The federal regulation set forth at 24 C.F.R.
§ 966.4(l)(5)(vii)(B) clarifies that although drug-related
criminal activity "shall be cause for termination of tenancy,"8
eviction will not always be necessary or appropriate when drug-
related criminal activity is discovered. Rather, local housing
authorities may consider the circumstances of the particular
case to decide whether eviction will further the objectives
underlying 42 U.S.C. § 1437d(l)(6).
¶67 The relevant text of this federal regulation is as
follows:
[Local housing authorities] may consider all
circumstances relevant to a particular case such as
the seriousness of the offending action, the extent of
participation by the leaseholder in the offending
action, the effects that the eviction would have on
family members not involved in the offending activity
and the extent to which the leaseholder has shown
7
See Turner, 295 S.W.3d at 129 (Moore, J., concurring).
8
42 U.S.C. § 1437d(l)(6).
5
No. 2013AP2207.ssa
personal responsibility and has taken all reasonable
steps to prevent or mitigate the offending action.9
¶68 In Department of Housing & Urban Development v.
Rucker, 535 U.S. 125 (2002), the United States Supreme Court
discussed and applied both 42 U.S.C. § 1437d(l)(6) and 24 C.F.R.
§ 966.4(l)(5)(vii)(B). The Court stated that 42 U.S.C.
§ 1437d(l)(6) "does not require the eviction of any tenant" who
engages in drug-related criminal activity.10 Rather, the Court
explained, the federal law
entrusts that decision to the local public housing
authorities, who are in the best position to take
account of, among other things, the degree to which
the housing project suffers from "rampant drug-related
or violent crime," "the seriousness of the offending
action," and "the extent to which the leaseholder
has . . . taken all reasonable steps to prevent or
mitigate the offending action."11
¶69 I agree with the concurring opinion of Judge Moore in
Housing Authority of Covington v. Turner, 295 S.W.3d 123, 129
(Ky. Ct. App. 2009), that "[w]hile much discretion rests with
the local Housing Authority, Rucker does require some thresholds
to be met or facts to be taken into consideration for the
eviction of a tenant under 42 U.S.C. § 1437d(l)(6)." As Judge
Moore so aptly put it: "[D]iscretion must be exercised, rather
than a blind application of the law[,] because 42 U.S.C.
§ 1437d(l)(6) does not require evictions."12
9
24 C.F.R. § 966.4(l)(5)(vii)(B).
10
Rucker, 535 U.S. at 133-34.
11
Id. (citations omitted).
12
Turner, 295 S.W.3d at 129 (Moore, J., concurring).
6
No. 2013AP2207.ssa
¶70 The record before the court contains no evidence that
the Housing Authority exercised discretion in deciding to evict
Cobb. In other words, no evidence was presented to show "that
the Housing Authority weighed anything in its decision to evict"
Cobb.13
¶71 The eviction action was filed shortly after a public
safety officer determined that Cobb was smoking marijuana in his
apartment. There is no evidence that any further investigation
took place in the interim. There is no evidence that the
particular housing project in which Cobb resides "suffers from
'rampant drug-related or violent crime.'"14 There is no evidence
that Cobb has previously engaged in drug-related criminal
activity or any other lease violations. Finally, with regard to
"the seriousness of the offending action,"15 the circuit court
observed that the drug-related criminal activity Cobb engaged in
"is the lowest of criminal activities."
¶72 I conclude, as did Judge Moore, that "reliance on 42
U.S.C. § 1437d(l)(6) alone is insufficient where the local
housing authority has not made a showing of evidence that it
weighed the policy considerations behind evictions in drug-
related cases in public housing."16 In the present case, the
Housing Authority has made no such showing.
13
Id.
14
Rucker, 535 U.S. at 133-34.
15
Id.
16
Turner, 295 S.W.3d at 129 (Moore, J., concurring)
7
No. 2013AP2207.ssa
¶73 For the reasons set forth, I dissent.
8
No. 2013AP2207.ssa
1