Pubdate: Fri, 13 Mar 2015
Source: Milwaukee Journal Sentinel (WI)
Copyright: 2015 Journal Sentinel Inc.
Contact: http://www.jsonline.com/general/30627794.html
Website: http://www.jsonline.com/
Details: http://www.mapinc.org/media/265
Author: Bruce Vielmetti

HIGH COURT UPHOLDS MAN'S EVICTION OVER POT

A 62-year-old Milwaukee man caught smoking marijuana in his federally 
subsidized apartment is not entitled to a second chance at keeping 
his home, the Wisconsin Supreme Court held Thursday.

In a 6-1 decision, the court agreed that a federal law preempts 
Wisconsin's five-day notice rule in evictions over criminal drug 
activity, and reversed a Court of Appeals ruling in favor of the 
tenant, Felton Cobb.

Cobb argued that he was entitled to promise not to smoke in the 
apartment again.

Writing for the majority, Justice Annette Ziegler said "no right to 
cure or remedy exists for a tenant who engaged in drug-related 
criminal activity" under the federal law aimed at ensuring decent, 
safe public housing.

"We question whether the Legislature intended for the right-to-remedy 
provision to apply to drug-related criminal activity or criminal 
activity in general," Ziegler wrote. "We also question whether past 
criminal activity is capable of being 'remedied.' "

Chief Justice Shirley Abrahamson dissented, saying federal law gives 
the Housing Authority discretion to evict Cobb but does not mandate 
his eviction.

In deciding how to apply that discretion, she wrote, housing 
authorities are "to be guided by compassion and common sense." The 
record in Cobb's case, she wrote, doesn't show any discretion was exercised.

Felton, 62, lived in a Merrill Park apartment run by the housing 
authority with federal funds from the U.S. Department of Housing and 
Urban Development. One of the strings attached to the federal money 
is that leases clearly state that tenants can be evicted for any 
drug-related criminal activity.

In June 2013, a housing authority officer patrolling Merrill Park 
smelled the strong scent of marijuana coming from Cobb's unit. He 
knocked and Cobb opened the door a little way but denied the smell 
was marijuana.

The city began eviction proceedings shortly after but never gave Cobb 
a five-day notice to cure, typically required under Wisconsin 
landlord-tenant law as a way to give tenants an opportunity to remedy 
a problem or infraction.

The majority opinion says, "Congress did not merely intend to prevent 
repeat drug offenses in public housing," and noted that "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."
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MAP posted-by: Jay Bergstrom