Milwaukee City Hous. Auth. v. Cobb

• Decision Date: 12 March 2015
• Docket Number: No. 2013AP2207.,2013AP2207.
• Citation: 361 Wis.2d 359,860 N.W.2d 267
• Parties: MILWAUKEE CITY HOUSING AUTHORITY, Plaintiff–Respondent–Petitioner, v. Felton COBB, Defendant–Appellant.
• Court: Wisconsin Supreme Court

361 Wis.2d 359

860 N.W.2d 267

MILWAUKEE CITY HOUSING AUTHORITY, Plaintiff–Respondent–Petitioner

v.Felton COBB, Defendant–Appellant.

No. 2013AP2207.

Supreme Court of Wisconsin.

Argued Jan. 9, 2015.

Decided March 12, 2015.

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 Apartment Association of Southeastern Wisconsin, Inc., and Wisconsin Association of Housing Authorities.

Opinion

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 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 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 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 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 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 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 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, 122 S.Ct. 1230, 152 L.Ed.2d 258 (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 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 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...