March 12, 2015 – The Wisconsin Supreme Court has upheld Felton Cobb’s eviction for allegedly smoking marijuana in his federally subsidized apartment despite his argument that he wasn’t smoking pot and the housing authority did not give him a chance to remedy the alleged breach.

Cobb, 62, was living in a publicly subsidized housing unit operated by the Milwaukee Housing Authority, which receives federal funds under a federal low-income housing program and must comply with federal laws on public housing. Federal law says drug-related criminal activity by tenants is cause for termination of the tenancy.

In 2013, a housing officer smelled marijuana emanating from Cobb’s door. After investigating and speaking with Cobb, the officer determined that Cobb was smoking marijuana, but did not alert local authorities. Cobb denied that he was smoking pot.

The Milwaukee Housing Authority then notified Cobb that he breached the one-year lease and sent a 14-day notice of eviction, ordering him to vacate within 14 days.

However, under Wis. Stat. section 704.17(2)(b), landlords must give tenants a notice requiring the tenant to “remedy the default” or vacate the premises within five days if the breach does not involve nonpayment of rent. A tenant can avoid eviction by taking reasonable steps to remedy the default and pay any damages related to the breach.

Cobb said the Milwaukee Housing Authority was required to give him a 5-day notice, allowing him to “remedy the default” – stop smoking pot – before kicking him out. Cobb also said the facts alleged were insufficient to prove he was actually smoking marijuana.

The circuit court concluded that, based on the officer’s testimony, the evidence was sufficient to find that Cobb was using marijuana. The circuit court also held that federal law preempts Wisconsin law in this area, and thus Cobb had no right to a 5-day notice.

In May 2014, a state appeals court reversed, concluding federal law does not preempt the Housing Authority’s duty to comply with notice requirements under Wisconsin law.

But in Milwaukee City Housing Authority v. Cobb, 2015 WI 27 (March 12, 2015), a Wisconsin Supreme Court majority (6-1) reversed the appeals court, concluding that federal law preempted Cobb’s right to receive a 5-day notice to remedy the default.

The majority said that federal law preempts Wisconsin’s right-to-remedy provisions when tenants in federally subsidized housing engage in drug-related criminal activity.

Specifically, the majority said that Wisconsin’s right-to-cure provisions conflict with the federal Anti-Drug Abuse Act, which promotes drug-free public housing by allowing housing authorities to promptly evict tenants who illegally use or deal drugs.

“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,” wrote Justice Annette Ziegler for the 6-1 majority.

“The potential to be evicted for any drug-related criminal activity, including a first offense, provides a powerful incentive to avoid such activity.”

Chief Justice Dissents

Chief Justice Shirley Abrahamson was the lone dissenter. She said that federal law gives housing authorities the “discretion” to evict persons who engage in drug-related criminal activity but does not mandate that result in every case.

“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,” the chief justice wrote in the dissenting opinion.

In exercising discretion, the chief justice noted that housing authorities should be “guided by compassion and common sense,” citing a 2002 letter to housing authorities from the former Secretary of the U.S. Department of Housing and Urban Development.

She noted that Cobb was 62 years old and his eviction was based on one officer’s testimony with no further investigation. In addition, there was no evidence of prior drug use by Cobb, the chief justice noted, and he had no other lease violations.