                                                                2015 WI 27

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:                2013AP2207
COMPLETE TITLE:          Milwaukee City Housing Authority,
                                    Plaintiff-Respondent-Petitioner,
                              v.
                         Felton Cobb,
                                    Defendant-Appellant.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 354 Wis. 2d 603, 849 N.W.2d 920
                                    (Ct. App. 2014 – Published)
                                       PDC No: 2014 WI App 70

OPINION FILED:           March 12, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           January 9, 2015

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                Pedro A. Colon

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, C.J. dissents. (Opinion filed)
   NOT PARTICIPATING:


ATTORNEYS:
       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    Association   of
Southeastern   Wisconsin,   Inc.,       and   Wisconsin   Association   of
Housing Authorities.




                                    2
                                                                             2015 WI 27
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2013AP2207
(L.C. No.    2013SC20628)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

Milwaukee City Housing Authority,

              Plaintiff-Respondent-Petitioner,
                                                                          FILED
      v.                                                             MAR 12, 2015

Felton Cobb,                                                            Diane M. Fremgen
                                                                     Clerk of Supreme Court

              Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                     Reversed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.                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


      1
          The Honorable Pedro Colon presided.
                                                         No.   2013AP2207



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

     2
       The lease defines "drug-related criminal activity" to mean
"the illegal manufacture, sale, distribution, use or possession
with intent to manufacture, sell, distribute or use of a
controlled substance[.]"     Federal housing law uses a nearly
identical   definition:   "[T]he   term   'drug-related  criminal
activity' means the illegal manufacture, sale, distribution,
use, or possession with intent to manufacture, sell, distribute,
or use, of a controlled substance (as defined in section 802 of
title 21)." 42 U.S.C. § 1437d(l).      Cobb does not dispute that
smoking marijuana is engaging in drug-related criminal activity.
     3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Wisconsin Stat.
§ 704.17(2)(b) provides in full:

          If a tenant under a lease for a term of one year
     or less, or a year-to-year tenant, commits waste or a
     material violation of s. 704.07 (3) or breaches any
     covenant or condition of the tenant's lease, other
     than for payment of rent, 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, or if damages are adequate protection for
     the landlord and the tenant makes a bona fide and
     reasonable offer to pay the landlord all damages for
     the tenant's breach. If within one year from the
     giving of any such notice, the tenant again commits
     waste or breaches the same or any other covenant or
     condition of the tenant's lease, other than for
     payment of rent, the tenant's tenancy is terminated if
     the landlord, prior to the tenant's remedying the
                                                     (continued)
                                    2
                                                                     No.    2013AP2207



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




     waste or breach, gives the tenant notice to vacate on
     or before a date at least 14 days after the giving of
     the notice.
     4
       Wisconsin Stat. § 704.17(2)(b) is sometimes known as a
"right to cure" statute.
     5
         Section 1437d(l)(6) of 42 U.S.C. states:

          Each public housing agency shall utilize leases
     which . . . 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[.]


                                         3
                                                                        No.     2013AP2207



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


       6
       To  be   clear,   we  do  not  hold   that Wis.   Stat.
§ 704.17(2)(b)'s right to remedy is preempted under all
circumstances.   Our holding is limited to a circumstance in
which drug-related criminal activity provides the basis for a
public housing eviction action.


                                                 4
                                                                  No.   2013AP2207



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
                                         5
                                                                                No.   2013AP2207



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


                                                 6
                                                                      No.   2013AP2207



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 (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

      7
       Cobb also appealed the circuit court's denial of his
motion for reconsideration. The motion argued that the circuit
court should have applied the "clear and convincing evidence"
burden of proof, rather than the "preponderance of the evidence"
standard, when determining whether he smoked marijuana.      The
court of appeals determined that Cobb had not properly appealed
this issue.   Milwaukee City Housing Authority v. Cobb, 2014 WI
App 70, ¶1 n.2, 354 Wis. 2d 603, 849 N.W.2d 920. This issue is
not before us.


                                             7
                                                                              No.   2013AP2207



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

       8
       We are not asked to defer to an agency's determination
regarding preemption.


                                                  8
                                                                       No.    2013AP2207



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

Wis. 2d 176, 699 N.W.2d 71.

                                  IV.    ANALYSIS

      ¶13    "Congress' power to pre-empt state law is derived from

the Supremacy Clause of Art. VI of the Federal Constitution."

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985) (citing

Gibbons v. Ogden, 9 Wheat. 1 (1824)).                Courts presume that state

law   is    not   preempted    unless    preemption       was    the    "'clear      and

manifest purpose of Congress.'"               Miller Brewing Co. v. Dep't of
Indus.,     Labor    &    Human   Relations,         Equal     Rights        Div.,   210

Wis. 2d 26, 35, 563 N.W.2d 460 (1997) (quoting Medtronic, Inc.

v. Lohr, 518 U.S. 470, 485 (1996)) (quotation marks omitted).

Federal     law   preempts     state    law    under    any     of   the      following

circumstances: (1) a federal law explicitly provides that it

preempts state law; (2) the "scheme of federal regulation [is]

'so pervasive as to make reasonable the inference that Congress

left no room for the States to supplement it'"; (3) federal law
and state law conflict such that compliance with both statutes
                                         9
                                                          No.   2013AP2207



is a "'physical impossibility'"; or (4) state law "'stan[ds] as

an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.'"         Barnett Bank of Marion

Cnty., N.A. v. Nelson, 517 U.S. 25, 31 (1996) (citations and

quoted sources omitted).      The Housing Authority relies on only

the fourth form of preemption, arguing that in this case the

right-to-remedy provision in Wis. Stat. § 704.17(2)(b) stands as

an obstacle to the accomplishment and execution of Congress'

goal and chosen method of providing drug-free public housing.

    ¶14   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.     See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494

(1987) (citing Mich. Canners & Freezers Ass'n v. Agric. Mktg. &

Bargaining Bd., 467 U.S. 461, 477 (1984)).             A state law is

preempted "only 'to the extent that it actually conflicts with

federal law.'"     Dalton v. Little Rock Family Planning Servs.,

516 U.S. 474, 476 (1996) (citations omitted).              To determine
whether a state statute conflicts with a federal law, we first

interpret the laws and then determine whether they conflict.

Megal   Dev.   Corp.,   286   Wis. 2d 105,    ¶38    (citing    Perez    v.

Campbell, 402 U.S. 637, 644 (1971)).

                  A. The Federal and State Provisions

    ¶15   We first turn to the purposes and objectives of the

federal law at issue.     "With drug dealers 'increasingly imposing

a reign of terror on public and other federally assisted low-
income housing tenants,' Congress passed the Anti–Drug Abuse Act
                                    10
                                                                      No.     2013AP2207



of 1988."        Rucker, 535 U.S. at 127 (quoting § 5122, 102 Stat.

4301, 42 U.S.C. § 11901(3) (1994 ed.)).                This Act states that:

            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.
42   U.S.C.      § 1437d(l)(6).       Section    1437d(l)(6)          "unambiguously
requires lease terms that vest local public housing authorities

with   the    discretion      to   evict     tenants    for     the    drug-related

activity of household members and guests . . . ."                       Rucker, 535

U.S. at 130.       "Thus, any drug-related activity engaged in by the

specified persons is grounds for termination."                         Id.       at 131.

However, this       "statute does not         require     the eviction of any

tenant . . . .       Instead, it entrusts that decision to the local

public housing authorities . . . ."             Id. at 133-34.

       ¶16    "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.'"      Boston Hous. Auth. v. Garcia, 871 N.E.2d 1073, 1078

(Mass. 2007) (quoting Rucker, 535 U.S. at 134).                      See also Hous.

Auth. of City of Norwalk v. Brown, 19 A.3d 252, 258-59 (Conn.

App.     2011)     ("Congress      declared     that     th[e]        purposes        and

objectives [of the Anti-Drug Abuse Act] are 'to provide public
and other federally assisted low-income housing that is decent,

                                        11
                                                                       No.     2013AP2207



safe, and free from illegal drugs.'" (quoting Scarborough, 890

A.2d at 256)).

       ¶17    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.                         See Scarborough, 890

A.2d at 256-57; Boston Hous. Auth., 871 N.E.2d at 1078.                               By

passing that requirement, "Congress enacted a straightforward

practical         method   of    dealing     with    a     serious    public     safety

problem."         City of S. San Francisco Hous. Auth. v. Guillory, 49

Cal. Rptr. 2d 367, 371 (Cal. App. Dep't Super. Ct. 1995).                             At

issue is whether Wis. Stat. § 704.17(2)(b) is in conflict with

the    accomplishment        and    execution       of    the    objectives     of   the

federal law.

       ¶18    The Wisconsin statute at issue provides:

       If a tenant . . . 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.
Wis. Stat. § 704.17(2)(b).               In its two briefs to this court, the

Housing       Authority         questions        whether        the   right-to-remedy

provision in § 704.17(2)(b) can apply to drug-related criminal

activity, even if this provision is not preempted.9                       We question
       9
       In response to questions posed by this court at oral
argument,   the  Housing   Authority argued that   Wis.  Stat.
§ 704.17(2)(b) does not apply to criminal activity, regardless
of whether it is preempted.


                                            12
                                                                          No.     2013AP2207



whether      the    legislature         intended       for    the        right-to-remedy

provision to apply to drug-related criminal activity or criminal

activity in general.             We also question whether past criminal

activity is capable of being "remedied."                     See Brown, 19 A.3d at

256-59 (holding that Connecticut's statute providing a right to

"remedy by repair" a lease violation did not apply to drug-

related criminal activity).              However, we need not resolve this

issue today because we conclude 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).


              B. Whether Wis. Stat. § 704.17(2)(b) Conflicts
                               with Federal Law
    ¶19       Cobb    argues     that    Wis.    Stat.       § 704.17(2)(b)           is   not

preempted.     He argues that federal housing law does not conflict

with § 704.17(2)(b).            He contends that a right to remedy drug-

related criminal activity is consistent with Congress' goal of
providing drug-free public housing because a tenant must cease

such activity in order to remedy it.                         He also contends that

compliance with both federal law and § 704.17(2)(b) is possible

and that the required termination notices under both laws are

consistent.        He identifies several statements of federal policy

that,   he   contends,      demonstrate         that   Congress      did        not   intend

preemption in the present case.                  Cobb further argues that his
lease requires the Housing Authority to follow § 704.17(2)(b).


                                           13
                                                                             No.        2013AP2207



Specifically, Cobb concedes that illegal drug use may be a basis

for termination, but he argues that the termination provisions

under § 704.17(2)(b) must be followed and that those provisions

give    Cobb    the       right    to     cure    his     lease     violation       to        avoid

eviction.

       ¶20     Cobb      relies     on    Housing       Authority      of     Covington         v.

Turner, 295 S.W.3d 123 (Ky. Ct. App. 2009), a split decision

from a Kentucky intermediate appellate court.                             In that case, a

public housing tenant was evicted because her nephew, who stayed

with    her     every          other     weekend,        stored      cocaine        and       drug

paraphernalia in the room where he kept his belongings.                                  Turner,

295 S.W.3d at 124.                The tenant forwarded an "innocent tenant"

defense and argued that the housing authority had not met its

burden of proof.                Specifically, the tenant testified that she

was unaware that drugs were being kept in her apartment.                                  Id.     A

provision      in     her      lease     mirrored       the     language     of    42     U.S.C.

§ 1437d(l)(6) and stated that she could be evicted if any guest

or   member     of       her    household       engaged       in   drug-related         criminal
activity.       Id. at 125.            The tenant argued that she could not be

evicted because she was not given an opportunity, required by a

Kentucky statute, to remedy the lease violation.                             Id. at 124-25.

The landlord argued that the statute was preempted, but the

court   unanimously            concluded    that       the     landlord     had    failed       to

adequately          demonstrate          that     it      had      weighed        the     policy

considerations behind the federal statute.                         Id. at 125, 128.

       ¶21     In    a    2:1    decision,       the    Kentucky      Court       of     Appeals
concluded that the state statute was not preempted.                                     Id.     One
                                                 14
                                                                             No.       2013AP2207



objective     of    the    federal        Anti-Drug        Abuse    Act   of     1988     is    to

"discourage[e]       illegal         drug    use    on     public    housing       premises."

Id. at 127.        Two judges concluded that a right to remedy illegal

drug activity is consistent with that objective because a tenant

who has "'been given the opportunity to remedy may be among the

most likely of tenants to prevent the situation from recurring,

thereby      furthering        the     purposes       of     and     objectives         of     the

[federal] law.'"           Id.       A concurring judge refused to join the

two-judge majority opinion concerning preemption.                                Id. at 128

(Moore, J., concurring).                  The judge ultimately concurred with

the    majority     opinion's          result,      however,       because       the    housing

authority had failed to demonstrate that it weighed the policy

considerations       behind       the       federal      statute.          Id.     at    129-30

(Moore, J., concurring).

       ¶22   Regarding preemption, the concurring judge concluded

that "there is no doubt" that the state statute is preempted by

the federal law.               Id. at 128 (Moore, J., concurring).                             She

reasoned that the right to remedy provided by the state statute
is contrary to the Anti-Drug Abuse Act, which clearly allows

tenants to be evicted for any drug-related criminal activity.

Id. (Moore, J., concurring).                       The judge then listed several

congressional       findings         to     support      the     federal       law's     "'one-

strike' policy," which was designed to eradicate illegal drug

activity      in    public       housing.           Id.     at     128-29      (Moore,         J.,

concurring) (quoting 42 U.S.C. § 11901).                            The judge concluded

that Congress' intent behind the Act was "to look out for the
best    interests         of     all      residents        in      housing     developments
                                              15
                                                                                   No.     2013AP2207



receiving federal funding.                 All tenants should be able to feel

secure    in      their    homes     and     live    in     decent       and       safe    housing,

without the fear of drug-related crimes often associated with

public housing."             Id. at 128 (Moore, J., concurring).                                 Cobb

urges     this      court     to     adopt     the        reasoning          of    the     Kentucky

intermediate appellate court's two-judge majority opinion and

conclude that the right to remedy is not preempted by federal

law.

       ¶23     On    the     other     hand,        the     Housing          Authority         argues

federal      housing       law     preempts        the     right     to       remedy       a    lease

violation under Wis. Stat. § 704.17(2)(b) in the present case.

The    Housing      Authority        contends       that     it    has       the    power       under

federal      law    to     evict    Cobb     for     engaging       in       any    drug-related

criminal activity.            According to the Housing Authority, a right

to    remedy       illegal    drug     activity           would    "severely             frustrate"

Congress'         requirement       that     the    Housing        Authority         retain      the

power to evict a tenant for engaging in such activity.                                           The

Housing Authority also argues that the goal of the Anti-Drug
Abuse Act is to provide drug-free public housing.                                        A right to

remedy    drug-related           criminal      activity,          the     Housing         Authority

argues, would frustrate Congress' goal of providing drug-free

public       housing.         The     Housing        Authority          relies       heavily      on

Scarborough         and    Boston    Housing        Authority,          in    which       the    high

courts       of     the      District        of      Columbia        and          Massachusetts,

respectively, held that federal housing law preempted statutes

that provided defenses against eviction.


                                               16
                                                              No.   2013AP2207



    ¶24    In Scarborough, a tenant was evicted for engaging in

"'criminal activity that threatens the health, safety, or right

to peaceful enjoyment of the premises . . . .'"10              Scarborough,

890 A.2d at 251, 252 n.1.           The tenant's criminal activity was

possession        of   two   unregistered    firearms   and    unregistered

ammunition in her apartment.11         Id. at 251-52 & n.2, 257.           The

tenant argued that she could not be evicted because she was not

given a 30-day opportunity, provided by a District of Columbia

code, to cure the lease violation.          Id.

    ¶25    The District of Columbia Court of Appeals unanimously

held that the right to cure was preempted because "application

of the District's cure opportunity for criminal violations that

threaten the safety or peace of other tenants would 'stand as an

obstacle     to    the   accomplishment     and   execution   of    the   full


    10
       Although the tenant in Scarborough was not evicted for
drug activity, both she and Cobb received eviction notices for
violating a lease term that mirrored 42 U.S.C. § 1437d(l)(6).
Scarborough v. Winn Residential L.L.P./Atl. Terrace Apartments,
890 A.2d 249, 255-56 (D.C. 2006). Section 1437d(l)(6) requires
a public housing lease to "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, . . . shall be cause for termination of
tenancy."    42 U.S.C. § 1437d(l)(6).       Thus, that section
associates drug-related criminal activity with criminal activity
that breaches the peace.
    11
       The tenant's boyfriend had used a firearm to fatally
shoot someone in her apartment.   Scarborough, 890 A.2d at 252.
However, the tenant was evicted for possessing unregistered
firearms and ammunition, not for the shooting. Id. at 251-52 &
n.2.


                                      17
                                                                                    No.     2013AP2207



purposes and objectives of Congress.'"                               Id. at 255.             Congress

intended to provide "'federally assisted low-income housing that

is decent, safe, and free from illegal drugs.'"                                          Id. at 256

(quoting 42 U.S.C. § 11901(1)).                         To that end, Congress required

public    housing          authorities        to    use        leases      that     provide        that

"[a]ny criminal activity that threatens the health, safety, or

right to peaceful enjoyment of the premises by other residents"

is    grounds       for    eviction.          Id.         An    opportunity           to    cure    the

criminal        activity         "would        substitute             for       the        landlord's

discretion a mandatory second-strike opportunity for a tenant to

stay eviction by discontinuing, or not repeating, the criminal

act . . . ."               Id.    at        257.          Therefore,            a   second-strike

opportunity         "would       frustrate          the        purpose         of   an      anticrime

provision           that        permits        eviction              for        'any'        criminal

activity [that threatens the safety or peace of other tenants]."

Id.

       ¶26     In     Boston       Housing          Authority,             a    public        housing

authority sought to evict a tenant because two of her adult sons
who    lived    with       her    were       arrested          for    possessing           marijuana.

Boston Hous. Auth., 871 N.E.2d at 1075-76.                                 Mirroring 42 U.S.C.

§ 1437d(l)(6),            the    tenant's      lease       stated          that     she     could   be

evicted if any member of her household engaged in drug-related

criminal activity.               Id. at 1075.              The tenant tried to defend

against      the     eviction       action         by     relying       on      a   Massachusetts

statute      that     provided         an    "innocent          tenant"         defense       against

eviction.       Id. at 1075-76.              She argued that she was an "innocent


                                                   18
                                                                         No.     2013AP2207



tenant" because she was unaware of and could not control her

sons' drug-related criminal activity.                 Id. at 1076.

       ¶27    The Massachusetts Supreme Judicial Court unanimously

held   that    federal     housing    law       preempted    the       state    statute's

"innocent tenant" defense.            Id. at 1078.           Congress enacted the

Anti-Drug Abuse Act of 1988 to ensure that public housing would

be "'decent, safe, and free from illegal drugs.'"                          Id. at 1078

(quoting      Rucker,    535   U.S.   at    134).       To      that    end,     Congress

"required that housing authorities use clauses in their leases

that   permit      the   termination       of    a   tenant's     lease        for   crimes

committed     by    household    members,        even   where      a    tenant       had    no

knowledge     of   and   was    not   at    fault     for   a   household        member's

criminal      activity."        Id.        Allowing      the     "innocent           tenant"

statutory defense to override a housing authority's discretion

to evict "would run afoul of and substantially interfere with

the congressional objective.           It is therefore preempted."                    Id.

       ¶28    We hold that Wis. Stat. § 704.17(2)(b) is preempted in

the present case because it "'stan[ds] as an obstacle to the
accomplishment and execution of the full purposes and objectives

of Congress.'"       See Barnett Bank, 517 U.S. at 31 (quoting Hines

v. Davidowitz, 312 U.S. 52, 67 (1941)).                         We agree with the




                                           19
                                                                 No.   2013AP2207



reasoning of Scarborough and Boston Housing Authority.12                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.

     ¶29    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.        See Boston Hous. Auth., 871 N.E.2d at

1078.     Tenants will have an incentive not to use illegal drugs

in the first instance if they can be evicted for, and given no

right to cure, drug-related criminal activity.              The potential to

be evicted for any drug-related criminal activity, including a

     12
        We disagree with Cobb that Boston Housing Authority is
distinguishable because it did not involve a right-to-remedy
statute. Courts have held that the Anti-Drug Abuse Act preempts
a variety of state laws that allow tenants to avoid eviction for
drug-related criminal activity.   E.g., Ross v. Broadway Towers,
Inc., 228 S.W.3d 113, 123-24 (Tenn. Ct. App. 2006) (holding that
state "estoppel" defense against eviction is preempted); City of
S. San Francisco Hous. Auth. v. Guillory, 49 Cal. Rptr. 2d 367,
371-72 (Cal. App. Dep't Super. Ct. 1995) (holding that state
statute that created a "reasonable cause" standard for eviction
is preempted); Hous. Auth. & Urban Redevelopment Agency of City
of Atl. City v. Spratley, 743 A.2d 309, 313-14 (N.J. Super. Ct.
App. Div. 1999) (holding that state statute that prohibits
eviction of "blameless tenants" is preempted).


                                      20
                                                                      No.    2013AP2207



first    offense,      provides    a   powerful         incentive    to   avoid   such

activity.      See Rucker, 535 U.S. at 134 (citing Pacific Mut. Life

Ins. Co. v. Haslip, 499 U.S. 1, 14 (1991)) ("Strict liability

maximizes deterrence . . . .").                 By contrast, if a landlord were

required to give a "free pass" on a tenant's first drug offense,

tenants would have little incentive not to use illegal drugs

because if they are caught, they can just promise not to do it

again.       For the other tenants of the building, this after-the-

fact    promise     is    far   from   a    remedy       for     completed    criminal

activity and "'stan[ds] as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.'"

See Barnett Bank, 517 U.S. at 31 (quoting Hines, 312 U.S. at

67).     The objective of Congress is to provide safe, drug-free

public housing, not to provide housing that allows criminal drug

activity so long as the offender promises not to do it again.

       ¶30    Cobb's argument to the contrary is unpersuasive.                    Cobb

argues    that    an     opportunity       to    remedy    a     first-offense    drug

violation is consistent with Congress' goal of drug-free public
housing, because a tenant remedies a drug offense by ceasing to

engage in drug-related activity.                  Simply stated, Cobb suggests

that a tenant helps to achieve drug-free housing by ceasing

drug-related activity.          The Kentucky Court of Appeals' two-judge

majority opinion in Turner used similar reasoning in holding

that its right-to-remedy statute was not preempted.                       Turner, 295

S.W.3d at 127.           This line of reasoning is flawed because it

ignores the fact that a tenant who ceases drug-related activity
has    already    been    caught   engaging        in     such    illegal    activity.
                                           21
                                                                          No.   2013AP2207



Congress did not merely intend to prevent repeat drug offenses

in public housing.           Congress intended to eliminate all drug-

related    criminal      activity     in    public        housing,    which     includes

first-time or repeat drug offenses.                   See 42 U.S.C. § 11901(1)

(expressing intent to provide public housing that is "free from

illegal    drugs")       (emphasis    added).         An     opportunity        to   avoid

eviction for a first-offense drug violation conflicts with that

congressional intent.13

     ¶31     In   addition    to     conflicting          with   Congress'       goal    of

providing    drug-free      public     housing,       a    right     to   remedy       drug-

related criminal activity conflicts with Congress' chosen method

of achieving that goal: allowing public housing authorities to

evict     tenants    for     engaging       in     any      drug-related        criminal

activity.         This    additional       conflict       militates       in    favor     of

preemption.        See Int'l Paper Co., 479 U.S. at 494 (citation

omitted) ("A state law also is pre-empted if it interferes with

the methods by which the federal statute was designed to reach

[Congress'] goal.").
     ¶32     The Anti-Drug Abuse Act "unambiguously requires lease

terms     that    vest    local    public       housing     authorities         with    the

discretion to evict tenants for the drug-related activity of

household members and guests . . . ."                     Rucker, 535 U.S. at 130.


     13
       In fact, the right to cure statute could, depending on
the circumstances, allow a tenant to engage in drug-related
criminal activity multiple times.    Thus, the right to cure
statute frustrates Congress' goal of providing drug-free public
housing.


                                           22
                                                                          No.    2013AP2207



A     right     to    remedy       drug-related      criminal        activity      "would

substitute      for    the    landlord's     discretion         a   mandatory     second-

strike        opportunity      for     a    tenant        to     stay      eviction     by

discontinuing,        or     not    repeating,      the        criminal    act . . . ."

Scarborough, 890 A.2d at 257.                   If the Housing Authority were

required to provide a tenant with an opportunity to remedy a

first-offense drug violation, the Housing Authority "would thus

have lost the ability to terminate a tenant who violated her

lease by . . . engaging in drug related criminal activity, an

ability         Congress       intends       to       preserve            for     housing

authorities . . . ."           Boston Hous. Auth., 871 N.E.2d at 1078.

The    right     to    cure     under      state    law        removes     the    Housing

Authority's discretion to evict afforded under federal law and

instead requires that the Housing Authority allow a tenant a

second chance.         Simply stated, Wis. Stat. § 704.17(2)(b)'s right

to cure undermines the federal law's intent to vest the power to

evict in the Housing Authority.                 Section 704.17(2)(b)'s right to

cure is thus preempted in the present case.                      See id.
       ¶33     Cobb argues that the right to cure has a "minimal"

effect on a public housing authority's power to evict tenants

who engage in drug-related criminal activity.                         For support, he

contends that a tenant who receives a notice to remedy-or-vacate

must either cease the lease-breaching behavior within five days

or vacate the premises.              He further contends that a tenant may

be evicted for a second breach of the lease without being given

an    opportunity      to    cure    the   second    breach.         Cobb's      argument
appears to mean that the right to cure is not preempted because
                                           23
                                                                                No.     2013AP2207



it does not substantially interfere with Congress' objectives.

See Barnett Bank, 517 U.S. at 33-34 (explaining that a state

statute       is     not     preempted           if     it     "does     not        prevent       or

significantly interfere with" the exercise of federal power).

We disagree.          A right to remedy drug-related criminal activity

would significantly interfere with Congress' objectives because

it would allow a tenant to avoid an eviction and run counter to

the    objective       of    providing           drug-free       public       housing.          See

Scarborough, 890 A.2d at 257-58 (holding that a tenant's right

to avoid eviction by curing criminal activity "would stand as a

pronounced obstacle to" and "undermine" congressional intent);

Boston       Hous.    Auth.,           871    N.E.2d     at    1078     (holding        that      an

"innocent      tenant"       defense           against       eviction    for        drug-related

activity "would run afoul of and substantially interfere with"

congressional intent).

       ¶34     To    highlight          the    significance      of     allowing       users      of

illegal      drugs     to    avoid       eviction,       we    note     the    findings        that

Congress made when adopting the Anti-Drug Abuse Act.                                   "[P]ublic
and other federally assisted low-income housing in many areas

suffers from rampant drug-related or violent crime."                                   42 U.S.C.

§ 11901(2).          "[D]rug dealers are increasingly imposing a reign

of    terror    on    public       and        other    federally      assisted        low-income

housing tenants."            Id. at § 11901(3).                "[T]he increase in drug-

related and violent crime not only leads to murders, muggings,

and   other     forms       of    violence       against       tenants,       but     also   to   a

deterioration          of        the     physical        environment          that      requires
substantial          government          expenditures."            Id.        at     § 11901(4).
                                                 24
                                                                     No.     2013AP2207



Congress' efforts to eliminate those serious problems would be

significantly obstructed if a tenant who engages in drug-related

criminal activity could avoid eviction by exercising a right to

cure past illegal drug activity.

    ¶35     Cobb argues that Wis. Stat. § 704.17(2)(b) does not

conflict with federal law because the Housing Authority could

have complied with both laws.              Cobb's reasoning is that federal

housing law allows, but does not require, the Housing Authority

to evict him.           See Rucker, 535 U.S. at 133-34.                    Thus, Cobb

argues, the Housing Authority would not violate federal law by

giving him an opportunity to remedy his lease violation.                          This

argument    is    unpersuasive       because      it     conflates   two     separate

grounds    for    preemption.        See       supra    ¶13.     A   state    law    is

preempted if it stands as an obstacle to the accomplishment and

execution of Congress' objectives, even if compliance with both

state and federal law is possible.                     Barnett Bank, 517 U.S. at

31; Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141,

154-56 (1982).          Moreover, while federal law does not require
eviction,    Cobb       recognizes       that    it     certainly    provides       for

eviction.     42 U.S.C. § 1437d(l)(6).                  As Cobb also recognizes,

federal law endows the Housing Authority with the discretion to

promptly evict a tenant who engages in drug-related criminal

activity.         Id.   at   § 1437d(l)(4)(A)(ii).              As   we     discussed

earlier,    the    right     to   cure    is    preempted      partly     because    it

thwarts that discretion by obliging a public housing authority

to provide an opportunity to cure past drug-related criminal


                                          25
                                                                  No.    2013AP2207



activity regardless of how heinous the offense was.                      See supra

¶¶31-32.

    ¶36    Cobb    further   contends      that   the    termination        notice

requirements under Wis. Stat. § 704.17(2)(b) and federal law are

not in conflict.       Cobb argues that § 704.17(2)(b) requires a

termination   notice   of    five    days,   which      is    well   within    the

applicable federal requirement of any reasonable length of time

not to exceed 30 days.14           See 42 U.S.C. § 1437d(l)(4)(A)(ii).

However, even if those time limits do not necessarily conflict,

§ 704.17(2)(b)'s     right to remedy conflicts with federal law in

the present case for the reasons already stated.

    ¶37    For the foregoing reasons, we conclude 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).

                     C. Cobb's Remaining Arguments


    14
       Cobb's argument relies on Meier v. Smith, 254 Wis. 70, 35
N.W.2d 452 (1948), in which this court held that a Wisconsin
statute requiring six months' notice prior to eviction did not
conflict with a federal statute requiring at least 60 days'
notice. We reasoned that the federal statute required a minimum
amount of notice and the Wisconsin statute did not go below that
minimum. Meier, 254 Wis. at 74-75. We also reasoned that the
Wisconsin statute "does not take any right from the landlord to
possession of property granted by [federal law]."    Id. at 79.
Meier thus hurts Cobb's position.   A right to remedy his lease
violation would deprive the Housing Authority of its right under
42 U.S.C. § 1437d(l)(6) to evict Cobb and take possession of his
housing unit.


                                      26
                                                                        No.   2013AP2207



     ¶38     Cobb     makes     several       arguments    in     addition     to     his

argument that the right to remedy does not conflict with 42

U.S.C. § 1437d(l)(6).           Although we have already determined that

the right to remedy conflicts with § 1437d(l)(6) in the present

case, we nevertheless briefly address these remaining arguments.

     ¶39     Cobb argues that his lease provides a right to remedy

his drug use.          He relies on section 9.C. of his lease, which

requires the Housing Authority to provide termination notices in

accordance      with     Wis.    Stat.    § 704.17(2).            Section 9.C.        has

several    express      exceptions,       including       section       9.C.2.,     which

states that 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 . . . any        drug-related        criminal

activity . . . ."            Cobb    argues    that    section    9.C.2.      does    not

eliminate the right to remedy but rather extends the five-day

notice period under § 704.17(2) to up to 30 days.                             However,

other lease provisions belie Cobb's argument.                       Section 6.J. of
the lease states that the Housing Authority will provide one

"written warning prior to a proposed termination of tenancy,

except . . . in the case of a violation of 5.Q. or a termination

per 9.C.2."          Section 5.Q., which uses language that closely

follows    42    U.S.C.       § 1437d(l)(6),          prohibits     a    tenant      from

engaging in "[a]ny activity that threatens the health, safety or

right to peaceful enjoyment of the premises . . . " or "[a]ny

drug-related or violent criminal activity. . . .                        Such activity
shall be cause for termination of tenancy."                     Thus, sections 6.J.
                                          27
                                                                 No.     2013AP2207



and 5.Q. plainly state that a written warning——i.e., a right to

remedy——does not apply to drug-related criminal activity.

      ¶40   Cobb relies on several statements of federal policy

for the proposition that the right to remedy is not preempted.

We   find   these     arguments     unpersuasive.        Cobb   points    to   the

preamble    to   a    HUD   rule,    which     amended   HUD    regulations     to

strengthen public housing authorities' ability to evict tenants

who engaged in illegal drug use or other criminal activity.

Screening     and     Eviction    for   Drug    Abuse    and    Other    Criminal

Activity, 66 Fed. Reg. 28776-01 (May 24, 2001).                   The preamble

states that "[t]his final rule does not . . . preempt State law

within the meaning of Executive Order 13132."                    Id. at 28791.

However, that statement sheds no light on whether 42 U.S.C.

§ 1437d(l)(6) preempts state law.15

      ¶41   Cobb also relies on a HUD regulation that states that

"a notice to vacate which is required by State or local law may

be combined with, or run concurrently with, a notice of lease

termination          under . . . this        section."            24       C.F.R.
§ 966.4(l)(3)(iii).         However, this regulation does not indicate


      15
       An earlier, proposed version of this rule stated that
federal housing policy created a "one strike" policy with
respect to illegal drug use. One–Strike Screening and Eviction
for Drug Abuse and Other Criminal Activity, 64 Fed. Reg. 40262-
01 (proposed July 23, 1999).     The final version of this rule
does not use the phrase "one strike."     Cobb argues that HUD's
omission of that phrase from the final version of this rule
further indicates that HUD did not intend for this rule to
preempt state law.    However, 42 U.S.C. § 1437d(l)(6) preempts
state law regardless of whether this HUD rule does as well.


                                        28
                                                                             No.     2013AP2207



whether a state law may require a public housing authority to

provide an opportunity to remedy drug-related criminal activity.

       ¶42     Cobb relies on a letter issued in response to Rucker

by     then-HUD     Secretary         Mel     Martinez,             which     states       that

"[e]viction should be the last option explored . . . ."                                   Letter

from Mel Martinez, HUD Secretary, to Public Housing Directors

(Apr. 16, 2002).            However, this letter does not shed any light

on whether a statutory right to cure may limit a public housing

authority's power to evict once it explores that option.                                    See

Boston Hous. Auth., 871 N.E.2d at 1078-79 & n.14.

       ¶43     Finally, Cobb relies on a HUD guidance that provides,

"State    or    local   law     governing         eviction      procedures          may    give

tenants      procedural      rights    in     addition         to    those    provided       by

federal law.        Tenants may rely on those state or local laws so

long as they have not been pre-empted by federal law."                                       HUD

Directive No. 96–16, Notice PIH 96–16(HA) (April 12, 1996); see

also    24     C.F.R.   §    247.6(c).            Cobb    argues       that    Wis.       Stat.

§ 704.17(2)(b)'s right to cure is a procedural right allowed
under that HUD guidance.               However, that HUD guidance expressly

states that local or state law cannot provide rights that are

preempted      by   federal     law.         We    have    already      determined         that

federal law preempts the right to cure in the present case.                                 See

also     Scarborough,         890     A.2d        at     258    (holding           that    "[a]

'procedural' right to a second chance to refrain from criminal

activity endangering other tenants would conflict fundamentally

with" federal housing law).


                                             29
                                                                 No.     2013AP2207



    ¶44     In sum, for the reasons previously set forth as well

as those briefly addressed above, we reject Cobb's additional

arguments that Wis. Stat. § 704.17(2)(b)'s right to cure is not

preempted in the present case.

                               V.    CONCLUSION

    ¶45     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).

Accordingly, we reverse the court of appeals' decision.

    By    the    Court.—The    decision    of    the   court    of     appeals   is

reversed.




                                      30
                                                                   No.   2013AP2207.ssa


     ¶46    SHIRLEY    S.    ABRAHAMSON,         C.J.       (dissenting).           The

Milwaukee City Housing Authority is attempting to evict Felton

Cobb, a disabled 62-year-old public housing tenant, because Cobb

smoked    marijuana    in   his   apartment.         In     deciding      whether    to

effectuate    this    eviction,    the       court   must    be    mindful    of    two

important, sometimes conflicting, interests.

     ¶47    On the one hand, the goal of public and subsidized

housing    programs    is   to    provide      low-income         individuals      with

"housing that is decent, safe, and free from illegal drugs."1

Eliminating drug-related criminal activity is a critical element

of pursuing that goal.

     ¶48    On the other hand, "federal law does not provide for

mandatory summary eviction [for drug-related criminal activity]

but vests in local authorities the discretion" to evict.2                            In

exercising such discretion, local housing authorities are "to be

guided by compassion and common sense."3

     ¶49    Thus, public housing evictions based on drug-related

criminal activity require the court to engage in a difficult
balancing act.       "[T]he Congressional intent is not to be overly

harsh on tenants . . . but to look out for the best interests of

     1
       Dep't of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 134
(2002) (citation omitted).
     2
       Housing Auth. of Covington v. Turner, 295 S.W.3d 123, 126
(Ky. Ct. App. 2009).
     3
       This quote comes from a letter issued to local housing
authorities by Mel Martinez, the former Secretary of the United
States Department of Housing and Urban Development. The letter,
dated April 16, 2002, was filed as an exhibit in support of
Cobb's motion to dismiss.


                                         1
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all   residents        in    housing      developments     receiving        federal

funding."4

      ¶50    I write separately to explain how I would balance the

significant interests at stake in the present case.

      ¶51    The    instant     case     was   briefed     and     argued     as     a

preemption case.          Cobb asserts a right under a state law that

the Housing Authority claims is preempted.                The majority opinion

rules in favor of the Housing Authority.                 I would rule in favor

of Cobb.

      ¶52    Even assuming that the state law at issue is preempted

(despite the presumption against preemption), I conclude that

Cobb's eviction is contrary to federal law.                Federal law confers

on the Housing Authority the discretion to evict Cobb under the

circumstances presented in the instant case; it does not mandate

that the Housing Authority evict everyone who engages in drug-

related criminal activity.

      ¶53    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.

      ¶54    I briefly state the relevant facts.




      4
          Turner, 295 S.W.3d at 128 (Moore, J., concurring).


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      ¶55   The Housing Authority filed an eviction action against

Cobb based on Cobb's violation of a lease provision prohibiting

drug-related       criminal        activity.            The    Housing         Authority

determined       that    Cobb     was   engaged        in   drug-related        criminal

activity     after      a      public   safety     officer       reported      smelling

marijuana coming from Cobb's apartment and reported that the

smell became stronger when Cobb opened his door.

      ¶56   It is undisputed that Cobb did not receive notice from

the Housing Authority providing Cobb with five days to either

remedy the lease violation or vacate the premises.                        Such notice

is required under Wis. Stat. § 704.17(2)(b) (2011-12), which I

refer to as the five-day notice statute.5

      ¶57   Cobb      contends      that    he     cannot     be   evicted       without

receiving the notice required by the five-day notice statute.

The   Housing     Authority        disagrees,      arguing     that      the   five-day

notice statute is preempted insofar as it requires local housing

authorities      to     give    tenants    an    opportunity       to    remedy   drug-

related criminal activity.
      ¶58   The       Housing      Authority's         preemption        argument     is

premised on an alleged conflict between 42 U.S.C. § 1437d(l)(6)

and the five-day notice statute.

      ¶59   42     U.S.C.        § 1437d(l)(6)         requires       local      housing

authorities      to     utilize    leases       that   provide     that    "any   drug-

related criminal activity . . . shall be cause for termination

of tenancy."          This provision was enacted as part of a larger

      5
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


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                                                                           No.    2013AP2207.ssa


effort     to    "provide      public        and       other    federally      assisted       low-

income     housing      that     is    decent,          safe,    and    free     from   illegal

drugs."6

      ¶60       Importantly, 42 U.S.C. § 1437d(l)(6) does not mandate

eviction when a local housing authority determines that a tenant

is engaged in drug-related criminal activity.                              Instead, as the

Housing Authority acknowledges in the instant case, 42 U.S.C.

§ 1437d(l)(6)         gives     local        housing       authorities         discretion       to

evict on the basis of drug-related criminal activity.

      ¶61       The   Housing     Authority             maintains       that     the    five-day

notice statute is at odds with its discretion to evict on the

basis of drug-related criminal activity.                           Requiring the Housing

Authority to give tenants an opportunity to remedy drug-related

criminal activity, the Housing Authority reasons, would enable

tenants to avoid eviction regardless of whether a discretionary

determination has been made that eviction is appropriate under

the circumstances.

      ¶62       For purposes of this dissent, I assume that 42 U.S.C.
§ 1437d(l)(6) preempts the five-day notice statute.                                I therefore

assume that the Housing Authority has discretion to evict Cobb

for   drug-related          criminal         activity           without    giving       him    an

opportunity to remedy his lease violation.

      ¶63       I conclude, however, that the record before the court

contains        no    evidence        that    the       Housing        Authority       exercised




      6
          Rucker, 535 U.S. at 134 (citation omitted).


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                                                                        No.    2013AP2207.ssa


discretion         in    the   present     case.      On     the     contrary,       Cobb's

eviction appears to be "a blind application of the law."7

       ¶64       Under    United     States       Supreme    Court       precedent       and

federal         regulations,       blind   application       of    the    law     does   not

constitute a legitimate exercise of the discretion conferred by

42 U.S.C. § 1437d(l)(6).               Thus, in my view, Cobb's eviction is

contrary to the federal law that the Housing Authority insists

is controlling.

       ¶65       I briefly review the federal regulation and the United

States Supreme Court opinion that inform my position.

       ¶66       The     federal     regulation      set     forth       at     24   C.F.R.

§ 966.4(l)(5)(vii)(B)               clarifies      that     although          drug-related

criminal activity "shall be cause for termination of tenancy,"8

eviction will not always be necessary or appropriate when drug-

related criminal activity is discovered.                      Rather, local housing

authorities        may    consider     the    circumstances        of    the    particular

case       to   decide    whether     eviction     will     further      the    objectives

underlying 42 U.S.C. § 1437d(l)(6).
       ¶67       The relevant text of this federal regulation is as

follows:

       [Local   housing   authorities]   may   consider   all
       circumstances relevant to a particular case such as
       the seriousness of the offending action, the extent of
       participation by the leaseholder in the offending
       action, the effects that the eviction would have on
       family members not involved in the offending activity
       and the extent to which the leaseholder has shown

       7
           See Turner, 295 S.W.3d at 129 (Moore, J., concurring).
       8
           42 U.S.C. § 1437d(l)(6).


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                                                                         No.   2013AP2207.ssa

       personal responsibility and has taken all reasonable
       steps to prevent or mitigate the offending action.9
       ¶68       In     Department       of    Housing      &   Urban    Development        v.

Rucker, 535 U.S. 125 (2002), the United States Supreme Court

discussed and applied both 42 U.S.C. § 1437d(l)(6) and 24 C.F.R.

§ 966.4(l)(5)(vii)(B).                   The       Court    stated      that    42     U.S.C.

§ 1437d(l)(6) "does not require the eviction of any tenant" who

engages in drug-related criminal activity.10                          Rather, the Court

explained, the federal law

       entrusts that decision to the local public housing
       authorities, who are in the best position to take
       account of, among other things, the degree to which
       the housing project suffers from "rampant drug-related
       or violent crime," "the seriousness of the offending
       action," and "the extent to which the leaseholder
       has . . . taken all reasonable steps to prevent or
       mitigate the offending action."11
       ¶69       I agree with the concurring opinion of Judge Moore in

Housing Authority of Covington v. Turner, 295 S.W.3d 123, 129

(Ky. Ct. App. 2009), that "[w]hile much discretion rests with

the local Housing Authority, Rucker does require some thresholds

to   be        met    or   facts   to    be    taken     into   consideration        for   the
eviction of a tenant under 42 U.S.C. § 1437d(l)(6)."                                 As Judge

Moore so aptly put it:                  "[D]iscretion must be exercised, rather

than       a    blind      application        of   the     law[,]    because    42     U.S.C.

§ 1437d(l)(6) does not require evictions."12

       9
            24 C.F.R. § 966.4(l)(5)(vii)(B).
       10
               Rucker, 535 U.S. at 133-34.
       11
               Id. (citations omitted).
       12
               Turner, 295 S.W.3d at 129 (Moore, J., concurring).


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       ¶70      The record before the court contains no evidence that

the Housing Authority exercised discretion in deciding to evict

Cobb.       In other words, no evidence was presented to show "that

the Housing Authority weighed anything in its decision to evict"

Cobb.13

       ¶71      The eviction action was filed shortly after a public

safety officer determined that Cobb was smoking marijuana in his

apartment.         There is no evidence that any further investigation

took    place      in    the   interim.     There    is    no    evidence    that   the

particular housing project in which Cobb resides "suffers from

'rampant drug-related or violent crime.'"14                  There is no evidence

that     Cobb      has    previously      engaged    in    drug-related       criminal

activity or any other lease violations.                   Finally, with regard to

"the seriousness of the offending action,"15 the circuit court

observed that the drug-related criminal activity Cobb engaged in

"is the lowest of criminal activities."

       ¶72      I conclude, as did Judge Moore, that "reliance on 42

U.S.C.      §     1437d(l)(6)    alone    is    insufficient      where     the   local
housing authority has not made a showing of evidence that it

weighed      the    policy     considerations       behind      evictions    in   drug-

related cases in public housing."16                  In the present case, the

Housing Authority has made no such showing.

       13
            Id.
       14
            Rucker, 535 U.S. at 133-34.
       15
            Id.
       16
            Turner, 295 S.W.3d at 129 (Moore, J., concurring)


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¶73   For the reasons set forth, I dissent.




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