Property — landlord-tenant — public housing — federal preemption

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Wisconsin Court of Appeals

Civil

Property — landlord-tenant — public housing — federal preemption

Federal law does not preempt the right-to-cure provision in WIS. STAT. § 704.17(2)(b).

“The Department of Housing and Urban Development’s one-strike policy is in a pamphlet in the Record here, ‘“One Strike and You’re Out” Policy in Public Housing.’ This type of agency manual, however, is not given the same type of deference to which courts give ‘regulations with the force of law.’ See Wos v. E.M.A. ex rel. Johnson, 568 U.S. ___, ___, 133 S. Ct. 1391, 1402 (2013): ‘We have held that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”’ (referencing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); quoted source omitted). In any event, ‘“One Strike and You’re Out” Policy in Public Housing’ only mentions federal preemption once—noting that proof of unlawful criminal activity by a tenant or a member of the tenant’s household need not be by conviction: ‘[A]ny provisions in state laws that require conviction in order to evict tenants are preempted by federal law.’ United States Department of Housing and Urban Development, ‘One Strike and You’re Out’ Policy in Public Housing, p.7 § III.2. (March 1996). Additionally, the pamphlet advises public-housing authorities to ‘consider additional language specifying that the [public-housing agency] has a One Strike or “zero tolerance” policy with respect to violations of lease terms regarding criminal activity.’ Id., § III.1. (Emphasis added.) Here, of course, Cobb’s lease with the Housing Authority not only does not have this ‘One Strike or “zero tolerance” policy’ clause but, as we have seen, the lease specifically binds the Housing Authority to comply with WIS. STAT. § 704.17(2)(b). Moreover, this is consistent with the manual’s recognition that ‘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 preempted by federal law.’ United States Department of Housing and Urban Development, “One Strike and You’re Out” Policy in Public Housing, p.9 § III.7.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2207 Milwaukee City Housing Authority v. Cobb

Dist. I, Milwaukee County, Colon, J., Fine, J.

Attorneys: For Appellant: Hartman, April A.G., Milwaukee; For Respondent: Heinen, John J., Milwaukee