Milwaukee City Hous. Auth. v. Cobb

• Decision Date: 28 May 2014
• Docket Number: No. 2013AP2207.,2013AP2207.
• Citation: 2014 WI App 70,354 Wis.2d 603,849 N.W.2d 920
• Parties: MILWAUKEE CITY HOUSING AUTHORITY, Plaintiff–Respondent, v. Felton COBB, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

354 Wis.2d 603

849 N.W.2d 920

2014 WI App 70

MILWAUKEE CITY HOUSING AUTHORITY, Plaintiff–Respondent,^†

v.Felton COBB, Defendant–Appellant.

No. 2013AP2207.

Court of Appeals of Wisconsin.

Submitted on Briefs May 6, 2014.

Filed May 28, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of April A.G. Hartman of Legal Action of Wisconsin, Inc., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and John J. Heinen, assistant city attorney.

Before FINE, KESSLER and BRENNAN, JJ.

FINE, J.

¶ 1 Felton Cobb appeals a judgment and restitution order evicting him from an apartment he rented from the Housing Authority of the City of Milwaukee. The Housing Authority claimed that Cobb violated his lease by using marijuana. One of the Housing Authority's security officers testified at the eviction evidentiary hearing that he smelled marijuana coming from Cobb's apartment during the security officer's routine patrol of the building. ¹ Although Cobb denied using marijuana that day, both to the security officer and during Cobb's testimony before the circuit court, the circuit court found the security officer more credible. Thus, the circuit court determined in its oral ruling that there was a “preponderance of evidence indicating that there's drug activity.” As explained below, the circuit court lacked competency over the Housing Authority's eviction action. Accordingly, we reverse and remand to the circuit court with directions that it vacate the eviction judgment and the restitution order. SeeWis. Stat. § 808.09. ²

I.

¶ 2 As noted, the circuit court evicted Cobb from his apartment in one of the Housing Authority's units. He was living there under a one-year lease. The parties agree that Cobb, who was sixty-two at the time of the hearing, is disabled. The parties also agree that the Housing Authority filed this eviction action without first giving Cobb the five-day, right-to-cure notice required by Wis. Stat. § 704.17(2)(b). This subsection provides, as material:

If a tenant under a lease for a term of one year ... 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. 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.

A landlord's failure to comply with an eviction statute's requirements deprives the circuit court of competency to enter an eviction judgment. See Meier v. Smith, 254 Wis. 70, 75, 35 N.W.2d 452, 455 (1948); Hartnip v. Fields, 247 Wis. 473, 475–476, 19 N.W.2d 878, 880 (1945); Tower Bldg. Co. v. Andrew, 191 Wis. 269, 270, 210 N.W. 842, 844 (1926). See also Baraboo National Bank v. Corcoran, 243 Wis. 386, 389, 10 N.W.2d 112, 113 (1943) (recognizing that where “[a] right or privilege is reserved in the lessee under the notice required to be served” by the statute, the notice must apprise the tenant of that “right” or “privilege” to cure the alleged breach of the rental agreement).

¶ 3 The Housing Authority does not dispute this. Rather, it argues that federal law preempted the right-to-cure provision in Wis. Stat. § 704.17(2)(b). The circuit court agreed. Our review of this legal issue is de novo. See M & I Marshall & Ilsley Bank v. Guaranty Financial, MHC, 2011 WI App 82, ¶ 21, 334 Wis.2d 173, 188, 800 N.W.2d 476, 483. We disagree.

II.

¶ 4 “Federal preemption is based on Article VI of the United States Constitution, which makes federal law ‘the supreme Law of the Land.’ ” Estate of Kriefall ex rel. Kriefall v. Sizzler USA Franchise, Inc., 2003 WI App 119, ¶ 3, 265 Wis.2d 476, 484, 665 N.W.2d 417, 421 (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) and U.S. Const. art VI).

There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision.

State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive ... that Congress left no room for the States to supplement it” or where there is a “federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”

Second, state laws are preempted when they conflict with federal law. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” and those instances where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress[.]” In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.”

Arizona v. United States, 567 U.S. ––––, ––––, 132 S.Ct. 2492, 2500–2501, 183 L.Ed.2d 351 (2012) (internal citations, quoted sources, and parenthetical omitted; ellipses in Arizona). Thus:

The question of whether federal law pre-empts state law is one of congressional intent. Federal law pre-empts state law in three situations: (1) where Congress explicitly mandates pre-emption of state law; (2) where Congress implicitly indicates an intent to occupy an entire field of regulation to the exclusion of state law; or, (3) where state law actually conflicts with federal law. The defendant bears the burden of establishing pre-emption.

Miller Brewing Co. v. Department of Industry, Labor and Human Relations, Equal Rights Division, 210 Wis.2d 26, 34–35, 563 N.W.2d 460, 464 (1997) (internal citations omitted, and paragraphing altered).

¶ 5 The Housing Authority does not contend that the federal statutes on which it relies “explicitly mandate[ ] pre-emption of state law,” as they would if the Congress had used language similar to that it used in 42 U.S.C. § 1437d( l ) (7): “notwithstanding any State law.” ³ We thus must see whether federal law either has occupied the “entire field” in connection with federal assistance to state public-housing authorities, or there is a conflict between federal law and Wis. Stat. § 704.17(2)(b) so that reconciliation of § 704.17(2)(b) with federal law either “is a physical impossibility” or Congress's “manifest” objectives are stymied by enforcement of the § 704.17(2)(b)'s right-to-cure requirement. See Arizona, 132 S.Ct. at 2501. None of these preemption requisites are here.

¶ 6 The Housing Authority first points to 42 U.S.C. § 1437d( l )(6) in support of its argument that federal law preempts Wis. Stat. § 704.17(2)(b). 42 U.S.C. § 1437d( l )(6) reads:

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.

(Emphasis added.) No one disputes that Cobb's lease with the Housing Authority so provides. But, Section 9 of the lease also specifically says that the Housing Authority will comply with Wis. Stat. § 704.17(2)(b):

C. The [Housing Authority] may evict the resident only by bringing a court action. The [Housing Authority] termination notice shall be given in accordance with a lease for one year per Section 704.17(2) of the Wisconsin Statutes, except 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 criminal activity which constitutes a threat to other Residents or employees of the [Housing Authority] of any drug-related criminal activity on or off the development grounds[.]

(Emphasis added.) Thus, Section 9.C.2 of the lease is fully consistent with 42 U.S.C. § 1437d( l )(5), which dictates that public-housing leases must “require that the public housing agency may not terminate the tenancy except for serious or repeated violation of the terms or conditions of the lease or for other good cause.” (Emphasis added.) Further, 42 U.S.C. § 1437d( l ) (4)(A) reads:

Each public housing agency shall utilize leases which—

.... (4) require the public housing agency to give adequate written notice of termination of the lease which shall not be less than—

(A) a reasonable period of time, but not to exceed 30 days-

(i) if the health or safety of other tenants, public housing agency employees, or persons residing in the immediate vicinity of the premises is threatened; or

(ii) in the event of any drug-related or violent criminal activity or any felony conviction[.]

Neither § 704.17(2)(b) nor Cobb's lease with the Housing Authority conflicts with § 1437d( l )(6) because compliance with both provisions is not “a physical impossibility” and enforcement of § 704.17(2)(b)'s five-day right to cure does not stymie Congress's “manifest” objectives as evidenced by §§ 1437d( l ) (4)(A) & 1437d( l )(5). See Arizona, 132 S.Ct. at 2501. Additionally, as we have also seen, the federal law does not supplant the field; it fully recognizes that public housing is a shared federal-state endeavor. But there is more.

¶ 7 We may also consider regulations adopted by the agency to fill the interstices left by the Congress. See Hillsborough County, Florida v. Automated...