Public Housing Tenants Are Subject to Special Rules
By: Daniel Olson, Asst. Legal Counsel, League
 
Public housing tenants are subject to special rules that private housing tenants are not.
 
For example, under federal law, public housing entities are required to include in public housing leases 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 U.S.C. § 1437d(l)(6). On the other hand, Wisconsin law requires that landlords give tenants the opportunity to remedy or cure a lease violation as an alternative to eviction. Wis. Stat. § 704.17(2)(b). The tension between these two legal requirements was the focus of a recent Wisconsin Supreme Court decision. Milwaukee City Housing Authority v. Cobb, Appeal No. 2013AP002207 (2015).
 
A tenant, Cobb, rented a public housing apartment from the Milwaukee Housing Authority (Authority). His lease included the federal law provision regarding criminal activity.
 
While patrolling Cobb’s apartment building, a public safety officer for the Authority detected the odor of marijuana coming from Cobb’s apartment. He spoke with Cobb without entering the apartment and made additional observations regarding the marijuana odor coming from Cobb’s apartment.
 
Several days later, the Authority notified Cobb that he violated the terms of his lease by engaging in illegal drug use. The Authority subsequently provided Cobb with a 14-day notice of eviction for engaging in illegal drug use. Contrary to Wisconsin law, this eviction notice did not provide Cobb with an opportunity to remedy or cure the lease violation.
 
Cobb challenged his eviction, arguing that he should have been provided an opportunity to cure his lease violation. The Authority countered, arguing that Wisconsin’s right to remedy provision is preempted by federal law such that no right to cure or remedy exists for a public housing tenant who engaged in drug-related criminal activity.
 
The Wisconsin Court of Appeals ruled in favor of Cobb. On appeal, the Wisconsin Supreme Court ruled for the Authority.
 
The Court explained that federal law preempts state law under several circumstances including when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” It further noted that 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.
 
The Court observed that “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.’” Furthermore, 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. The Court concluded Wisconsin’s right to remedy provision stood as an obstacle to federal law.
 
The Court found that “[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.”
 
The Court thus held that federal law 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, the Court reversed the decision of the court of appeals.

Housing 21