Milwaukee City Housing Authority v. Cobb
849 N.W.2d 920
Wis. Ct. App.2014Background
- Cobb appeals a judgment and restitution order evicting him from a Housing Authority of Milwaukee unit for alleged lease violation due to drug activity.
- A security officer testified he smelled marijuana from Cobb’s apartment; Cobb denied use, and the circuit court credited the officer, finding a preponderance of drug-activity evidence.
- The circuit court lacked competency to adjudicate the eviction under Wis. Stat. § 704.17(2)(b) because notice requirements were not met.
- The Housing Authority conceded it did not give Cobb the five-day right-to-cure notice required by § 704.17(2)(b).
- The court resolved the federal preemption question de novo and held that § 704.17(2)(b) is not preempted by federal law, and that the lease binds the Authority to comply with § 704.17(2)(b).
- This court reverses and remands to vacate the eviction judgment and restitution order due to the circuit court’s lack of competency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the circuit court have competency to adjudicate the eviction? | Cobb argues lack of notice voids competency; the Housing Authority contends otherwise. | Housing Authority asserts preemption and proper notice effects compliance. | Circuit court lacked competency; eviction judgment and restitution order vacated. |
| Does federal preemption foreclose the right-to-cure requirement in Wis. Stat. § 704.17(2)(b)? | Preemption eliminates state right-to-cure in eviction actions for public housing. | No preemption; state right-to-cure can coexist with federal housing goals. | No preemption; Wis. Stat. § 704.17(2)(b) is compatible with federal law. |
| Do federal statutes/regulations occupy the field or create conflicts with § 704.17(2)(b)? | Federal law preempts state eviction procedures in public housing. | Federal law permits coexistence and fills interstices without field preemption. | No field or conflict preemption; no complete occupancy of the field. |
| Is the Housing Authority bound by § 704.17(2)(b) despite federal guidance to the contrary? | Authority bound to state right-to-cure under the lease and state statute. | Federal law overrides or displaces state requirements. | Authority bound; right-to-cure is not preempted and is enforceable. |
Key Cases Cited
- Arizona v. United States, 567 U.S. 387 (2012) (three preemption theories; Congress intent governs preemption analysis)
- Meier v. Smith, 254 Wis. 70 (1948) (eviction notices and circuit court competency depend on statutory compliance)
- Hartnip v. Fields, 247 Wis. 473 (1945) (competency to adjudicate eviction must align with statute requirements)
- Tower Bldg. Co. v. Andrew, 191 Wis. 269 (1926) (notice requirements affect eviction proceedings)
- Baraboo National Bank v. Corcoran, 243 Wis. 386 (1943) (notice rights must apprise lessee of cure privileges)
- Scarborough v. Winn Residential L.L.P./Atlantic Terrace Apartments, 890 A.2d 249 (D.C. Cir. 2006) (federal preemption may bar state cure requirements in some eviction contexts)
- Rucker (Department of Housing and Urban Development v.), 535 U.S. 125 (2002) (HUD lease terms grant discretionary evictions; not a mandate to evict)
- M & I Marshall & Ilsley Bank v. Guaranty Financial, MHC, 2011 WI App 82 (2011) (de novo review of preemption with Wisconsin law)