Milwaukee City Housing Auth. v. Cobb

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Justia Opinion Summary

The Milwaukee City Housing Authority brought an eviction action against Defendant, who lives in federally subsidized housing, because Defendant violated the terms of his lease by engaging in “drug-related criminal activity” - i.e., smoking marijuana inside his apartment. Defendant argued that he could not be evicted because Wis. Stat. 704.17(2)(b) required the notice of eviction to provide him with an opportunity to remedy his lease violation. The circuit court issued a restitution order and writ of eviction. The court of appeals reversed. The Supreme Court reversed the court of appeals, holding that 42 U.S.C. 1437d(1)(6) preempts the right-to-remedy provision of section 704.14(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(1).

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2015 WI 27 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP2207 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: March 12, 2015 January 9, 2015 Circuit Milwaukee Pedro A. Colon JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ABRAHAMSON, C.J. dissents. (Opinion filed) 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, behalf of the Housing and Development Law Institute. D.C., on An amicus curiae brief was filed by Heiner Giese and Giese & Weden, S.C., Southeastern Milwaukee, Wisconsin, on Inc., behalf and Housing Authorities. 2 of Wisconsin Association of Association of 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, FILED Plaintiff-Respondent-Petitioner, v. MAR 12, 2015 Felton Cobb, Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 published ANNETTE KINGSLAND ZIEGLER, J. decision of the court of Reversed. This is a review of a 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 landlord, Cobb the lives in Milwaukee federally City subsidized Housing housing. Authority His ("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. he was not Cobb argues that he may not be evicted because 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. the default."4 2013AP2207 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 § 704.17(2)(b) federal in this housing case. law preempts Specifically, Wis. the Stat. 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 Housing engaged Authority in drug-related asserts that its criminal activity. preemption argument The 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 drugrelated 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. ¶5 FACTUAL BACKGROUND 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. from the United The Housing Authority receives funding States Development ("HUD"). Department of Housing and Urban 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." 6 42 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. U.S.C. § 1437d(l)(6). 2013AP2207 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 officer On June James 5, Darrow 2013, Housing ("Officer Authority Darrow") was public safety 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 possessing marijuana. Darrow did not observe Cobb using or 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. ¶8 On July 18, PROCEDURAL POSTURE 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. the eviction action, Cobb also filed a motion to dismiss 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. to remedy his The circuit court held that Cobb had no right 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 preempted by federal law. Wis. Stat. § 704.17(2)(b) was not 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. Cobb could not be evicted because the competency over the eviction action. circuit 2013AP2207 court lacked 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 preempts the § 704.17(2)(b) right-to-remedy when a public U.S.C. § 1437d(l)(6) provision housing of tenant Wis. is Stat. 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. federal law preempts state law We determine whether 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. Wis. 2d 105, 705 N.W.2d 645. Shadof, 2005 WI 151, ¶8, 286 "[W]e have repeatedly held that 8 We are not asked to defer to an agency's determination regarding preemption. 8 No. statutory interpretation 'begins with the 2013AP2207 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). ordinary, and "Statutory language is given its common, 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. ¶13 ANALYSIS "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)). law is not preempted unless preemption manifest purpose of Congress.'" Indus., Labor & Human Courts presume that state was the "'clear and Miller Brewing Co. v. Dep't of 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 accomplishment and law stands execution of as an Congress' obstacle to objectives if the 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 lowincome housing tenants,' Congress passed the Anti–Drug Abuse Act 10 No. of 1988." 2013AP2207 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 the drug-related activity of household members and guests . . . ." Rucker, 535 U.S. at 130. to evict tenants for "Thus, any drug-related activity engaged in by the specified persons is grounds for termination." However, this "statute does not tenant . . . . require with the at 131. the eviction of any Instead, it entrusts that decision to the local public housing authorities . . . ." ¶16 Id. "Congress objective enacted of the Id. at 133-34. Anti–Drug reducing Abuse drug-related Act crime of in 1988, public housing and ensuring 'public and other federally assisted lowincome housing drugs.'" that is decent, safe, and free from illegal 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 free To achieve public housing that is decent, safe, and 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). Housing Authority In its two briefs to this court, the 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 9 We question 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. whether the legislature intended for the 2013AP2207 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 drugrelated criminal activity). However, we need not resolve this issue today because we conclude that 42 U.S.C. § 1437d(l)(6) preempts the § 704.17(2)(b) right-to-remedy when a public provision housing of tenant is Wis. Stat. 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 preempted. argues that Wis. Stat. § 704.17(2)(b) is not 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. that, he He identifies several statements of federal policy contends, demonstrate preemption in the present case. that Congress did not intend 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 relies on cure his lease violation to avoid eviction. ¶20 Cobb 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 paraphernalia in the room where he kept his belongings. 295 S.W.3d at 124. drug Turner, 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. provision U.S.C. in her lease mirrored the language of 42 A § 1437d(l)(6) and stated that she could be evicted if any guest or member of activity. her household Id. at 125. engaged in drug-related criminal 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 adequately concluded demonstrate that that it the landlord had considerations behind the federal statute. ¶21 In a 2:1 decision, the had weighed the to policy Id. at 125, 128. Kentucky Court concluded that the state statute was not preempted. 14 failed of Appeals Id. One No. objective of the "discourage[e] Id. at 127. federal illegal Anti-Drug drug use Abuse on Act public of 2013AP2207 1988 housing is to premises." 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 [federal] law.'" the Id. purposes of and objectives (Moore, J., concurring). majority the A concurring judge refused to join the two-judge majority opinion concerning preemption. the of Id. at 128 The judge ultimately concurred with 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). congressional findings to The judge then listed several support the federal law's "'one- strike' policy," which was designed to eradicate illegal drug activity in public housing. Id. at concurring) (quoting 42 U.S.C. § 11901). 128-29 (Moore, J., The judge concluded that Congress' intent behind the Act was "to look out for the best interests of all residents 15 in housing developments No. 2013AP2207 receiving federal funding. All tenants should be able to feel secure live in their homes and in decent and safe housing, without the fear of drug-related crimes often associated with public housing." urges this Id. at 128 (Moore, J., concurring). court to adopt the reasoning of the Cobb Kentucky intermediate appellate court's two-judge majority opinion and conclude that the right to remedy is not preempted by federal law. ¶23 federal On the housing other law hand, the preempts the Housing right Authority to remedy argues a lease violation under Wis. Stat. § 704.17(2)(b) in the present case. The Housing federal law Authority contends to Cobb evict for that it has the power in any drug-related engaging under criminal activity. According to the Housing Authority, a right to drug remedy Congress' illegal requirement activity that the would "severely Housing Authority frustrate" retain power to evict a tenant for engaging in such activity. the The Housing Authority also argues that the goal of the Anti-Drug Abuse Act is to provide drug-free public housing. remedy drug-related criminal activity, the A right to Housing Authority argues, would frustrate Congress' goal of providing drug-free public housing. Scarborough courts of and the The Housing Authority Boston Housing Authority, in Columbia and District of relies heavily which the on high Massachusetts, respectively, held that federal housing law preempted statutes that provided defenses against eviction. 16 No. ¶24 2013AP2207 In Scarborough, a tenant was evicted for engaging in "'criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises . . . .'"10 890 A.2d at 251, 252 n.1. possession of two Scarborough, The tenant's criminal activity was unregistered ammunition in her apartment.11 firearms and unregistered 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. ¶25 Id. 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. Id. at 255. purposes and objectives of Congress.'" 2013AP2207 Congress intended to provide "'federally assisted low-income housing that is decent, safe, and free from illegal drugs.'" (quoting 42 U.S.C. § 11901(1)). public housing authorities Id. at 256 To that end, Congress required 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 criminal for eviction. activity Id. "would An opportunity substitute for to the cure the landlord's discretion a mandatory second-strike opportunity for a tenant to stay eviction by discontinuing, or not repeating, the criminal act . . . ." Id. opportunity "would provision that at 257. frustrate permits Therefore, the purpose eviction a of second-strike anticrime 'any' for an 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), that the tenant's lease stated she could be evicted if any member of her household engaged in drug-related criminal activity. against the statute that eviction. Id. at 1075. eviction provided action an Id. at 1075-76. by The tenant tried to defend relying "innocent on tenant" a Massachusetts defense against 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. ¶27 held that Id. at 1076. The Massachusetts Supreme Judicial Court unanimously federal housing "innocent tenant" defense. law preempted the Id. at 1078. state statute's Congress enacted the Anti-Drug Abuse Act of 1988 to ensure that public housing would be "'decent, safe, and free from illegal drugs.'" (quoting Rucker, 535 U.S. at 134). To that Id. at 1078 end, Congress "required that housing authorities use clauses in their leases that permit the termination committed by household knowledge of and criminal was activity." of members, not Id. at a tenant's even fault where for Allowing a the lease a for tenant household crimes had no member's "innocent tenant" statutory defense to override a housing authority's discretion to evict "would run afoul of and substantially interfere with the congressional objective. ¶28 It is therefore preempted." Id. 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)). 19 We agree with the No. reasoning of Scarborough and Boston Housing Authority.12 2013AP2207 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 drugfree public housing. 1078. See Boston Hous. Auth., 871 N.E.2d at 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. first offense, activity. provides a powerful incentive to 2013AP2207 avoid such 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. fact For the other tenants of the building, this after-the- 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 argues Cobb's argument to the contrary is unpersuasive. that an opportunity to remedy a first-offense Cobb 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. S.W.3d at 127. Turner, 295 This line of reasoning is flawed because it ignores the fact that a tenant who ceases drug-related activity has already been caught engaging 21 in such illegal activity. No. 2013AP2207 Congress did not merely intend to prevent repeat drug offenses in public housing. related criminal Congress intended to eliminate all drug- activity in public first-time or repeat drug offenses. housing, which includes 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 providing In addition drug-free to conflicting public housing, with a Congress' right to goal remedy of drug- related criminal activity conflicts with Congress' chosen method of achieving that goal: allowing public housing authorities to evict tenants activity. for This preemption. engaging additional in any conflict drug-related militates in criminal favor of 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 terms The Anti-Drug Abuse Act "unambiguously requires lease that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests . . . ." 13 Rucker, 535 U.S. at 130. 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. A right to substitute strike for remedy the landlord's opportunity discontinuing, or drug-related for not a criminal discretion tenant repeating, Scarborough, 890 A.2d at 257. to the a 2013AP2207 activity "would mandatory second- stay eviction criminal by act . . . ." 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 under right to cure 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. ¶33 See id. 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. "innocent Auth., tenant" 871 defense N.E.2d at against 1078 (holding eviction for that an drug-related activity "would run afoul of and substantially interfere with" congressional intent). ¶34 illegal To highlight drugs to the avoid significance eviction, we of note allowing the users findings Congress made when adopting the Anti-Drug Abuse Act. of that "[P]ublic and other federally assisted low-income housing in many areas suffers from rampant drug-related or violent crime." § 11901(2). of terror 42 U.S.C. "[D]rug dealers are increasingly imposing a reign on public housing tenants." and other federally Id. at § 11901(3). assisted low-income "[T]he increase in drug- related and violent crime not only leads to murders, muggings, and other forms deterioration substantial of of violence the government against physical environment expenditures." 24 tenants, Id. but also that at to a requires § 11901(4). 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. argument grounds is for unpersuasive preemption. because See it supra conflates ¶13. A two This separate 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, recognizes eviction. Cobb that it 42 U.S.C. § 1437d(l)(6). certainly provides for 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. earlier, Id. the at right § 1437d(l)(4)(A)(ii). to cure is preempted As we partly discussed because it thwarts that discretion by obliging a public housing authority to provide an opportunity to cure past drug-related criminal 25 No. activity regardless of how heinous the offense was. 2013AP2207 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. termination Cobb argues that § 704.17(2)(b) requires a 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. ¶38 Cobb makes several arguments in addition 2013AP2207 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 several with Wis. express Stat. exceptions, § 704.17(2). including Section 9.C. section 9.C.2., has 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 activity . . . ." case Cobb of . . . any argues that drug-related section 9.C.2. criminal does not eliminate the right to remedy but rather extends the five-day notice period under § 704.17(2) to up to 30 days. other lease provisions belie Cobb's argument. However, 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." follows 42 Section 5.Q., which uses language that closely 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. . . . shall be cause for termination of tenancy." 27 Such activity Thus, sections 6.J. 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 preamble these arguments to HUD a unpersuasive. rule, which Cobb amended HUD points to regulations the 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 Activity, 66 Fed. Reg. 28776-01 (May 24, 2001). Other Criminal 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 § 966.4(l)(3)(iii). section." 24 C.F.R. 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. 4026201 (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 by Cobb relies on a letter issued in response to Rucker then-HUD Secretary Mel Martinez, which states "[e]viction should be the last option explored . . . ." that 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 "State Finally, Cobb relies on a HUD guidance that provides, or tenants local law procedural federal law. governing rights in eviction addition procedures to those may give provided by 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 federal law preempts the right to cure in the present case. also Scarborough, 890 A.2d at 258 (holding that that See "[a] 'procedural' right to a second chance to refrain from criminal activity endangering other tenants would conflict fundamentally with" federal housing law). 29 No. ¶44 2013AP2207 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. ¶45 We hold that 42 CONCLUSION 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 reversed. 30 of the court of appeals is No. ¶46 SHIRLEY S. ABRAHAMSON, C.J. 2013AP2207.ssa (dissenting). The Milwaukee City Housing Authority is attempting to evict Felton Cobb, a disabled 62-year-old public housing tenant, because Cobb smoked marijuana effectuate this in his eviction, apartment. the court In must deciding be whether mindful of to two important, sometimes conflicting, interests. ¶47 housing On the one hand, the goal of public and subsidized 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. all residents in housing developments 2013AP2207.ssa 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 preemption case. case was briefed and argued as a Cobb asserts a right under a state law that the Housing Authority claims is preempted. rules in favor of the Housing Authority. The majority opinion 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 drugrelated criminal activity. ¶53 Because evidence that evicting Cobb the the and record Housing because before Authority the the court exercised parties did contains no discretion in 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 4 I briefly state the relevant facts. Turner, 295 S.W.3d at 128 (Moore, J., concurring). 2 No. ¶55 2013AP2207.ssa The Housing Authority filed an eviction action against Cobb based on Cobb's violation of a lease provision prohibiting drug-related determined activity criminal that after activity. Cobb a was public The engaged in safety Housing Authority drug-related officer reported criminal 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 authorities U.S.C. to § 1437d(l)(6) utilize leases that requires provide local that housing "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. effort to "provide income housing public that is and other decent, federally safe, and 2013AP2207.ssa assisted free from low- 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 contains 6 I conclude, however, that the record before the court no evidence that the Housing Authority Rucker, 535 U.S. at 134 (citation omitted). 4 exercised No. discretion in the present case. On the 2013AP2207.ssa contrary, Cobb's eviction appears to be "a blind application of the law."7 ¶64 federal Under United regulations, States blind Supreme application Court of precedent the law does and 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 § 966.4(l)(5)(vii)(B) regulation clarifies set that forth at although 24 C.F.R. drug-related criminal activity "shall be cause for termination of tenancy,"8 eviction will not always be necessary or appropriate when drugrelated criminal activity is discovered. authorities case to may decide consider whether the Rather, local housing circumstances eviction will of the particular 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 eviction of a tenant under 42 U.S.C. § 1437d(l)(6)." Moore so aptly put it: than a blind for As Judge "[D]iscretion must be exercised, rather application of the law[,] because 42 § 1437d(l)(6) does not require evictions."12 9 the 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 U.S.C. No. ¶70 2013AP2207.ssa 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 in place the interim. There is no evidence that the particular housing project in which Cobb resides "suffers from 'rampant drug-related or violent crime.'"14 that Cobb has previously engaged in activity or any other lease violations. There is no evidence drug-related criminal 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 U.S.C. I conclude, as did Judge Moore, that "reliance on 42 § 1437d(l)(6) alone is insufficient where the local housing authority has not made a showing of evidence that it weighed the policy considerations related cases in public housing."16 behind evictions in 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 drug- No. ¶73 For the reasons set forth, I dissent. 8 2013AP2207.ssa No. 1 2013AP2207.ssa