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SCOW: Tenants in public housing can be evicted for drug crimes without being given a chance to remedy lease violation

Milwaukee City Housing Authority v. Cobb, 2015 WI 27, reversing a published court of appeals decision; majority opinion by Justice Ziegler; case activity (including briefs)

A tenant living in federally subsidized housing does not need to be given an opportunity to remedy the default when he or she violates the lease by engaging in “drug-related criminal activity” because federal law governing subsidized public housing preempts state law right-to-remedy requirements.

Cobb was given a notice of eviction after he smoked marijuana in his apartment. He argued he couldn’t be evicted without first being given an opportunity under § 704.17(2)(b) to remedy or cure his lease violation and thereby avoid eviction. Reversing the court of appeals’ decision that agreed with Cobb, the supreme court holds that 42 U.S.C. § 1437d(l)(6) preempts Wisconsin’s right-to-cure when a public housing tenant is evicted for engaging in “drug-related criminal activity” within the meaning of 42 U.S.C. § 1437d(l).

Chief Justice Abrahamson dissents. She concludes that even if federal law preempts state law on this matter, federal law does not mandate eviction in every case of drug-related criminal activity but instead gives the housing authority discretion to evict or give a tenant an opportunity to cure. There’s no indication the housing authority exercised discretion in Cobb’s case, so the matter should be remanded for a proper exercise of discretion.

This decision is noted because of its potential relevance to advising clients about the collateral consequences of a conviction for “drug-related criminal activity.”

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