Chateau Foghorn LP v. Wesley Hosford, No. 73, September Term, 2016. Opinion by
Getty, J.
CONSTITUTIONAL LAW — PREEMPTION — CONFLICT PREEMPTION —
LANDLORD-TENANT LAW — MARYLAND CODE (1974, 2010 REPL. VOL.),
REAL PROPERTY ARTICLE § 8-402.1
The Court of Appeals held that Maryland Code, Real Property Article § 8-402.1(b)(1),
which provides that a court ruling on a landlord-tenant dispute must conclude that a breach
of a lease is “substantial and warrants an eviction” before granting judgment for possession
of the leased premises, is not preempted by federal law and regulations mandating that
federally-subsidized Section 8 project-based housing developments include provisions in
their tenant lease agreements to provide that engaging in any drug-related criminal activity
on or near the leased premises is grounds for termination of the lease.
Circuit Court for Baltimore City
Case No. 24-C-14-005119
Argued: March 30, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 73
September Term, 2016
CHATEAU FOGHORN LP
v.
WESLEY HOSFORD
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
Opinion by Getty, J.
Filed: August 28, 2017
“The Government of the United States, . . . though limited in
its powers, is supreme; and its laws, when made in pursuance
of the Constitution, form the supreme law of the land[.]”
Chief Justice John Marshall, McCulloch v. Maryland,
17 U.S. 316, 406 (1819).
“[B]ecause the States are independent sovereigns in our federal
system, we have long presumed that Congress does not
cavalierly pre-empt state-law causes of action. In all pre-
emption cases, and particularly in those in which Congress has
legislated . . . in a field which the States have traditionally
occupied, we start with the assumption that the historic police
powers of the States were not to be superseded by the Federal
Act unless that was the clear and manifest purpose of
Congress.”
Justice John Paul Stevens, Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996) (citations and internal quotation
marks omitted).
In all cases involving the interplay between the laws issued by the federal
government and those enacted by the states, courts must balance the twin principles stated
above: First, pursuant to the Supremacy Clause,1 federal law enacted under the delegated
powers and authority of the federal government is the supreme law of the land; Second,
there is a presumption against federal laws or regulations preempting or superseding state
laws, particularly in fields that have historically been the province of the states.
1
Article VI, Section 2 of the United States Constitution provides,
This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, any thing in the Constitution or
laws of any State to the contrary notwithstanding.
In the instant case we are called upon to apply those principles to Maryland Code,
(1974, 2010 Repl. Vol.), Real Property Article (“RP”) § 8-402.1, which provides that a
court ruling on a landlord-tenant dispute must conclude that a breach of a lease is
“substantial and warrants an eviction” before granting judgment for possession of the
leased premises. We must decide whether the Maryland statute conflicts with, and is thus
preempted by, federal law and regulations mandating that federally-subsidized Section 8
project-based housing developments include provisions in their tenant lease agreements to
provide that engaging in any drug-related criminal activity on or near the leased premises
is grounds for termination of the lease. For the following reasons, we shall conclude that
RP § 8-402.1 does not conflict with the congressional intent behind the federal law and
regulations at issue and, therefore, we shall hold that the statute is not preempted by federal
law.
I.
BACKGROUND
Wesley Hosford, the Respondent, is severely disabled and has been wheelchair-
bound since 1987. He suffers from incomplete paralysis in his extremities, with muscle
spasms and sensations leaving him in daily pain.2 Since 1989, Mr. Hosford has resided at
Ruscombe Gardens Apartments, an apartment building in Baltimore City owned by
Chateau Foghorn LP (“Foghorn”), the Petitioner. Ruscombe Gardens Apartments provides
2
Mr. Hosford’s condition is referred to in the record as either “quadriplegia” or
“quadriparesis.”
2
housing for low-income elderly and disabled tenants that is subsidized through a federal
“Section 8” project-based rental subsidy program.3
In 2012, Mr. Hosford renewed his lease with Ruscombe Gardens, and signed a
“Drug-Free Housing Policy” addendum to the lease, which provided, in pertinent part,
DRUG-FREE HOUSING POLICY
IN CONSIDERATION of the execution or renewal of the lease of the
dwelling unit identified in the lease, Owner and Tenant agree as follows:
1. Tenant, any member of tenant’s household, or a guest or other person
under the tenant’s control shall not engage in or facilitate criminal
activity on or near the project, including, but not limited to, violent
criminal activity or drug-related criminal activity. . . .
2. Tenant or any member of tenant’s household, or a guest or other
person under the tenant’s control shall not engage in any act intended
to facilitate criminal activity, including drug-related criminal activity
on or near the project premises.
3. Tenant or members of the household will not permit the dwelling unit
to be used, or to facilitate, criminal activity, including drug-related
criminal activity or possession of drug paraphernalia, regardless of
whether the individual engaging in such activity is a member of the
household or a guest.
4. Tenant or member will not engage in the manufacture, sale, or
distribution of illegal drugs at any location, whether on or near project
premises or otherwise.
* * *
6. VIOLATION OF THE ABOVE PROVISIONS SHALL BE A
MATERIAL VIOLATION OF THE LEASE AND GOOD CAUSE
FOR TERMINATION OF TENANCY. A single violation of any of
the provisions of this policy shall be deemed a serious violation and a
3
The “Section 8” project-based rental program is discussed in greater detail in Part
III.B of this opinion.
3
material noncompliance with the lease. Unless otherwise provided by
law, proof of violation shall not require criminal conviction, but shall
be by a preponderance of the evidence.
(Emphasis in original.)
In 2014, Ruscombe Gardens Apartments was experiencing a bed bug infestation,
and Foghorn hired an extermination company to treat units in the complex. On June 10,
2014, two exterminators entered Mr. Hosford’s unit to perform extermination treatment
and saw a marijuana plant growing in a pot in his bathtub.4 They reported this to the
apartment’s management office. A security guard employed by Ruscombe Gardens
Apartments went to Mr. Hosford’s unit and saw the same marijuana plant.
Thereafter, police were called, and an officer responded and came to Mr. Hosford’s
unit. The officer examined the plant in the bathroom, concluded it was marijuana, and
confiscated it. He then issued Mr. Hosford a criminal citation for the possession of
marijuana. A police chemist tested the plant found in the apartment and concluded that it
was marijuana. Subsequently, Mr. Hosford was charged in the District Court of Maryland
sitting in Baltimore City with possession of less than ten grams of marijuana. Ultimately,
a nolle prosequi was entered as to that charge.
In June 2014, Foghorn gave Mr. Hosford a notice of termination of his lease. When
he did not vacate the unit within thirty days of that notice, Foghorn initiated an eviction
action pursuant to RP § 8-402.15 against Mr. Hosford in the District Court of Maryland
4
The exterminators also saw a light machine that Foghorn contends was a “grow
light” for marijuana cultivation.
5
RP § 8-402.1 (“Breach of Lease”) provides in pertinent part (emphasis added),
4
(a) Complaint to District Court; summons to appear; notice; continuance.—
(1) (i) Where an unexpired lease for a stated term provides that the
landlord may repossess the premises prior to the expiration of
the stated term if the tenant breaches the lease, the landlord
may make complaint in writing to the District Court of the
county where the premises is located if:
1. The tenant breaches the lease;
2. A. The landlord has given the tenant 30
days’ written notice that the tenant is in
violation of the lease and the landlord
desires to repossess the leased premises;
or
B. The breach of the lease involves
behavior by a tenant or a person who is on
the property with the tenant’s consent,
which demonstrates a clear and imminent
danger of the tenant or person doing
serious harm to themselves, other tenants,
the landlord, the landlord’s property or
representatives, or any other person on the
property and the landlord has given the
tenant or person in possession 14 days’
written notice that the tenant or person in
possession is in violation of the lease and
the landlord desires to repossess the
leased premises; and
3. The tenant or person in actual possession of
the premises refuses to comply.
(ii) The court shall summons immediately the tenant . . . to
appear before the court on a day stated in the summons to show
cause, if any, why restitution of the possession of the leased
premises should not be made to the landlord.
***
5
sitting in Baltimore City, claiming that Mr. Hosford had breached the terms of the drug-
free housing agreement addendum to his lease. Mr. Hosford thereafter filed a timely prayer
for a jury trial in the circuit court, claiming that the value of his right to continued
occupation of his apartment exceeded the $15,000 threshold set by statute.6
The case was subsequently transferred to the Circuit Court for Baltimore City for a
jury trial. Prior to the scheduled date of trial, Foghorn filed a motion for summary judgment
with a supporting memorandum, asserting:
That there was no genuine dispute of fact that Mr. Hosford had possessed
marijuana in his apartment;
(b) Judgment of the District Court; appeal.—
(1) If the court determines that the tenant breached the terms of
the lease and that the breach was substantial and warrants an
eviction, the court shall give judgment for the restitution of the
possession of the premises and issue its warrant to the sheriff or a
constable commanding the tenant to deliver possession to the
landlord. . . .
6
Maryland Code, Courts & Judicial Proceedings § 4-402(e)(1) provides that “[i]n a
civil action in which the amount in controversy does not exceed $15,000, exclusive of
attorney’s fees if attorney’s fees are recoverable by law or contract, a party may not demand
a jury trial pursuant to the Maryland Rules.” The amount in controversy in an action for
eviction is the value of the tenant’s right of continued possession. See Carroll v. Hous.
Opportunities Comm’n, 306 Md. 515, 525 (1986). We have previously noted that under
applicable case law and federal regulations, a tenant in a federally-subsidized housing unit
where a lease renews automatically has “a continuing right of possession to the unit for an
indefinite time period[,]” so long as there is no material breach of a lease. Cottman v.
Princess Anne Villas, 340 Md. 295, 298 (1995). Therefore, we have held that to value a
tenant’s right of possession in such a case, a court must first determine the yearly fair
market value of the unit, and then multiply that value by the expected life span of the tenant.
Id. at 299. Here, Mr. Hosford’s lease contains an automatic renewal provision. And,
Foghorn has not contested on appeal before this Court or the Court of Special Appeals that
the application of such a formula in the instant case yields an amount over $15,000. See
Hosford v. Chateau Foghorn LP, 229 Md. App. 499, 504 n.2 (2016).
6
That, while Mr. Hosford had not been convicted of a crime for that
marijuana possession, his possession of marijuana was illegal under
federal law and, at the time of his citation by a Baltimore City police
officer, was also illegal under Maryland law, and therefore constituted
“drug-related criminal activity” in violation of the drug-free housing
policy addendum to Mr. Hosford’s lease;
That the provisions of the drug-free housing policy addendum permitting
eviction for drug-related criminal activity to Mr. Hosford’s lease were
mandated by federal law and regulations governing leases for federally-
subsidized housing; and,
That the requirement in RP § 8-402.1 that a trial court order eviction only
if a tenant’s breach is “substantial and warrants an eviction” should be
held to be preempted by federal law in Mr. Hosford’s case, because that
requirement conflicts with federal law and regulations governing the
Section 8 project-based housing program which, according to Foghorn,
“have vested [Foghorn] with the discretion to determine whether drug-
related criminal activity by a tenant is substantial and warrants eviction,
without any qualifications.”
In response, Mr. Hosford claimed that there was a dispute of material fact as to
whether the plant in his apartment was marijuana. He also noted that his criminal citation
was for possession of less than ten grams of marijuana. And, he presented medical records
to show his history of muscle spasms and other sensations and pain as a result of his
paralysis, along with an expert affidavit that the use of marijuana “is likely to provide . . .
therapeutic or palliative relief” from such symptoms. On the basis of that information, he
asserted that even if he had possessed marijuana his actions did not constitute a criminal
offense pursuant to Maryland Code, Criminal Law Article (“CR”) §§ 5-601(c)(2)(ii) or
5-602(c)(3)(iii)(1), and thus were not a breach of his lease. Finally, he contended that even
if he had breached the terms of his lease, the trial court could still determine whether the
breach was “substantial and warrants an eviction” pursuant to RP § 8-402.1.
7
On March 18, 2015, the circuit court held a hearing on Foghorn’s motion for
summary judgment. On March 23, 2015, the circuit court issued a written order granting
summary judgment in favor of Foghorn as well as a judgment of restitution of possession.
In a thorough and well-written memorandum opinion accompanying its order, the circuit
court set forth its reasoning for granting summary judgment.
The circuit court began by addressing the evidence as to Mr. Hosford’s possession
of marijuana. The circuit court noted that Foghorn had provided a certified Laboratory
Report from the police chemist stating that material from the plant had been analyzed and
found to contain marijuana. The circuit court therefore concluded that there was not a
dispute of material fact that a marijuana plant was found growing in Mr. Hosford’s rental
unit.
The circuit court then turned to whether Mr. Hosford’s possession of marijuana
was illegal activity. The circuit court noted that Maryland no longer “punishes the
possession of less than ten grams of marijuana as a crime[,]” as CR § 5-601(c)(2)(ii) now
provides that possession of less than ten grams of marijuana is “a civil offense.” However,
the court also noted that the law amending CR § 5-601 to add that provision did not become
effective until October 1, 2014—more than four months after the marijuana plant was
discovered in Mr. Hosford’s apartment. See 2014 Md. Laws ch. 158. Thus, that provision
did not apply to Mr. Hosford’s case.
The circuit court also addressed another statutory provision raised by Mr. Hosford,
CR §§ 5-601(c)(3)(iii)(1), which provides that it is an “affirmative defense” in a
prosecution for marijuana if a defendant can show that he has a “debilitating medical
8
condition” for which “marijuana is likely to provide the defendant with therapeutic or
palliative relief.” Although the circuit court noted that no appellate court had yet
considered the effect of that affirmative defense, the court concluded that “the statute and
the ordinary operation of affirmative defenses in criminal cases suggest that a defendant
successfully asserting the affirmative defense would escape conviction altogether.”
Therefore, the circuit court concluded that “if Maryland law alone were the basis for
[Foghorn’s] assertion of criminal activity by Mr. Hosford,” then his conduct might not be
considered criminal.
However, the circuit court noted that, under federal law, marijuana remains a
Schedule I controlled substance.7 And the circuit court concluded that, unlike under
Maryland law, there was no “explicit or implicit necessity exception for the medical use of
marijuana” in the federal Controlled Substances Act.8 The circuit court therefore held that
“[Foghorn] may proceed on the basis that the possession of any quantity of marijuana is a
crime under federal law.”
The circuit court then turned to the last remaining issue, whether the court or a jury
is “allowed to review the landlord’s exercise of discretion in treating this particular
possession of marijuana as warranting termination of the lease and eviction.” The circuit
court characterized the issue as one of federal preemption, stating,
7
See 21 U.S.C. § 812 (listing “marihuana” as a Schedule I controlled substance).
8
In support of its ruling, the circuit court cited United States v. Oakland Cannabis
Buyers’ Co-op., 532 U.S. 483, 493 (2001) (holding that there was no defense of medical
necessity for marijuana use or possession because “Congress has made a determination that
marijuana has no medical benefits worthy of an exception”).
9
Federal law compels [Foghorn] to include in its leases for subsidized housing
provisions that forbid tenants from engaging in or permitting any criminal
drug activity on the premises and that give it the authority to evict a tenant
for breaching that promise. See Dep’t of Housing and Urban Dev. v. Rucker,
535 U.S. 125, 130-31 (2002). Although these terms are strict, the severity is
tempered by federal regulations giving landlords some measure of discretion
in deciding whether to seek eviction. Id. at 128-29. [Foghorn] argues that
this federal law preempts RP § 8-402.1(b)(1) to the extent [it] vests in
Maryland courts discretion to determine either that an alleged breach is
substantial or that it warrants eviction.
In analyzing the preemption issue, the circuit court discussed Brown v. Housing
Opportunities Commission, 350 Md. 570 (1998) and Grady Management, Inc. v. Epps, 218
Md. App. 712 (2014), as cases dealing with the relationship between RP § 8-402.1 and
federal regulations governing federally-subsidized housing. However, the circuit court
concluded that neither case provided significant guidance, as neither involved an issue of
preemption.
Instead, the circuit court relied upon three out-of-state cases: Milwaukee City
Housing Authority v. Cobb, 860 N.W.2d 267 (Wis. 2015); Boston Housing Authority v.
Garcia, 871 N.E.2d 1073 (Mass. 2007); and Scarborough v. Winn Residential
L.L.P./Atlantic Terrace Apartments, 890 A.2d 249 (D.C. 2006).9 The circuit court
concluded that all three out-of-state cases stood for the proposition that “although federal
law vests a landlord renting subsidized housing with discretion not to pursue eviction in all
instances of criminal activity, state courts cannot be given discretion to overrule the
landlord’s exercise of discretion.” (Emphasis in original.) Therefore, the circuit court held
9
We will discuss both the Maryland and out-of-state cases considered by the circuit
court, along with other relevant authority, in part III.B of this opinion.
10
that the requirement in RP § 8-402.1(b)(1) that a court must determine that a tenant’s breach
“was substantial and warrants an eviction” before awarding a judgment of possession “is
preempted by federal law to the extent that it would permit a judge or jury either to exercise
discretion de novo or to review the landlord’s exercise of discretion in deciding to proceed
with an eviction.”10 Mr. Hosford subsequently filed a motion to alter or amend judgment,
which the circuit court denied.
Thereafter, Mr. Hosford noted an appeal to the Court of Special Appeals. In a
reported opinion, the Court of Special Appeals reversed the judgment of the circuit court.
Hosford v. Chateau Foghorn LP, 229 Md. App. 499 (2016). The Court of Special Appeals
considered three issues, only one of which is before us:
1. In an eviction action involving federally-subsidized housing, does federal
law preempt the requirement in [RP] § 8-402.1 that a court must conclude
that a breach of a lease be “substantial” and “warrant eviction” before
granting judgment for possession of the leased premises?11
10
In a footnote, the circuit court noted that while the parties had “assumed that all
questions under RP § 8-402.1(b)(1) would be put to the jury[,]” the court was “not so
certain of that assumption.” The circuit court explained that “the question of whether a
particular breach warrants eviction might be considered an equitable issue as to which there
is not a jury trial right.” The circuit court explicitly declined to reach and rule on that issue.
11
The Court of Special Appeals also considered two other issues:
2. Was there sufficient evidence in the record to support the circuit court’s
conclusion that there was no genuine dispute of material fact that [Mr.]
Hosford possessed marijuana in his apartment?
3. Does the possession of a small amount of marijuana for medical purposes
constitute “drug-related criminal activity” in violation of the terms of [Mr.]
Hosford’s lease?
Hosford, 229 Md. App. at 502. The intermediate appellate court only briefly addressed
those issues, agreeing with the circuit court’s analysis that “there was no dispute of material
11
Id. at 502.
The Court of Special Appeals held that federal law did not preempt RP § 8-402.1.
The intermediate appellate court discussed the various types of federal preemption—
express, field, and conflict—and concluded that the only applicable preemption doctrine
was conflict preemption. Id. at 510-12. The Court of Special Appeals noted that the intent
of Congress is the focus of a preemption analysis. Id. at 510. The court also stated that in
determining congressional intent, courts start “with the basic assumption that Congress did
not intend to displace state law,” see id. (quoting Maryland v. Louisiana, 451 U.S. 725,
746 (1981)), a presumption that is at its strongest when the particular area of law is
traditionally the domain of the states. Id. at 510-11. The Court of Special Appeals held
that “[i]n instances where federal law regulates an area traditionally within the domain of
state law, the state law must do ‘major damage’ to ‘clear and substantial’ federal interests
before the Supremacy Clause will demand that state law will be overridden[.]” Id. at 511
(quoting Hillman v. Maretta, 133 S. Ct. 1943, 1950 (2013) (quoting Hisquierdo v.
Hisquierdo, 439 U.S. 572, 581 (1979))).
The Court of Special Appeals determined that “landlord-tenant law is traditionally
within the domain of state law[.]” Id. at 512. The court therefore held that under the
standard of conflict preemption set forth in Supreme Court case law “the disputed portions
fact as to whether [Mr.] Hosford was in possession of marijuana on the day that his
apartment was inspected[,]” and that “Maryland’s decriminalization of possession of small
amounts of marijuana does not change the fact that possession of any amount of marijuana
is a violation of the federal Controlled Substances Act.” Id. at 509.
12
of RP § 8-402.1 are preempted only if they cause ‘major damage’ to ‘clear and
substantial[’] federal interests embedded in the federal law.” Id.
The Court of Special Appeals then analyzed the relevant federal statute, regulations
and agency guidance documents, see id. at 512-22, and identified two “closely-related”
federal interests: first, that “residents of federally-supported housing be protected against
the effects of criminal activity in general, and drug-related criminal activity in particular”;
and, second, that “landlords have discretion to initiate eviction proceedings in such
situations[,]” although “only by recourse to state or local landlord-tenant law” through
filing an eviction action in state court. Id. at 508-09.12 The Court of Special Appeals then
evaluated whether RP § 8-402.1 did “major damage” to those interests so as to require
preemption.
The intermediate appellate court noted that, due to the federal interest in affording
landlords discretion to evict tenants for drug-related criminal activity, “a landlord does not
have to consider equitable factors in determining whether to pursue eviction for drug-
related conduct.” Id. at 523. However, the Court of Special Appeals also determined that
“a landlord cannot effect an eviction by itself—it must go to court and obtain a judgment
entered in accordance with non-pre-empted state law.” Id. Consequently, the Court of
Special Appeals concluded that there was no federal congressional intent to require “state
12
The Court of Special Appeals stated its view of the two federal interests at issue
using slightly different language later in its opinion: “(1) ensuring that federally-subsidized
housing remains a safe and drug-free environment; and (2) preserving a landlord’s ability
to initiate eviction actions against tenants that threaten the former goal.” Hosford, 229 Md.
App. at 529
13
courts to order evictions upon a finding of a breach of the lease due to drug-related
activity[,]” without considering equitable considerations mandated under state law. Id. at
523-24.
The Court of Special Appeals concluded that, based on its analysis of the federal
interests and applicable case law, “permitting State courts to exercise discretion and
consider equitable factors when deciding whether to rule in a landlord’s favor in an eviction
action concerning federally-subsidized housing is consistent with federal law and policy.”
Id. at 529. However, the Court of Special Appeals also emphasized that a trial court’s
discretion to review a landlord’s decision in the federally-subsidized housing context
should be narrow, and that courts should presume that drug-related criminal activity
“ordinarily” warrants eviction, explaining,
We believe that courts can strike the proper balance between federal policy
and state law by presuming that drug-related criminal activity is a breach that
ordinarily warrants eviction under RP § 8-402(b)(1), but that this
presumption may be rebutted by equitable factors that arise in a given case.
This approach gives proper weight both to the exercise of the landlord’s
discretion accorded under federal law to seek eviction, and to Maryland’s
public policy, embodied in RP § 8-402.1(b), that tenants—especially
impoverished and disabled ones—not be evicted automatically when good
reasons are presented and credited to show that such eviction would be not
only unduly harsh but not necessary to accommodate the Federal objectives.
Id. at 529-30 (emphasis in original).13 As the circuit court did not exercise such discretion,
the Court of Special Appeals reversed the grant of summary judgment. Id. at 530. Foghorn
13
The Court of Special Appeals noted that the circuit court had explicitly declined
to rule as to whether Mr. Hosford was entitled to have a jury determine whether a breach
was “substantial and warrants eviction.” Hosford, 229 Md. App. at 530 n.18. On appeal
to this Court, neither party has raised the issue of whether, when an defendant in an eviction
proceeding moves for a jury trial, the required determination under RP § 8-402.1(b)(1)
14
thereafter petitioned this Court for a writ of certiorari, which we granted on December 2,
2016. 450 Md. 661 (2016).14
On appeal to this Court, Foghorn presents a single question for our review,15 which
we have rephrased: Did the Court of Special Appeals err in holding that, in an eviction
action for a breach of lease, the requirements in RP § 8-402.1(b)(1) that a court must
determine that a tenant’s breach of lease was “substantial” and “warrants an eviction” in
order to award judgment for the restitution of the possession of the premises to the landlord
should be made by the trial judge or may properly be submitted to the jury. Thus, in our
interpretation of the statute in this opinion we shall decline to consider that issue.
14
After granting certiorari, we also granted two separate motions by parties seeking
to file an amici curiae brief in this matter: one by the Maryland Multi-Housing Association,
Inc. and another by the Public Justice Center, Homeless Persons Representation Project
and Disability Rights Maryland. See Md. Rule 8-511.
15
In his brief to this Court on appeal, Mr. Hosford also raises the issue of whether
the Court of Special Appeals erred in holding that his possession of marijuana was criminal
conduct. In essence, he contends that while the federal Controlled Substances Act
penalizes the possession of marijuana, that law does not necessarily mandate the imposition
of criminal penalties for possession of small amounts of marijuana. See 21 U.S.C. § 844a
(providing for civil penalties for possession of certain controlled substances in quantities
indicating the substances were for personal use only). Furthermore, notwithstanding the
Supreme Court’s ruling in Oakland Cannabis Buyers’ Co-op., 532 U.S. at 493, that there
was no defense of medical necessity for marijuana use or possession under the Controlled
Substances Act, Mr. Hosford maintains that more recent federal cases and policy
developments have cast doubt on that ruling. Thus, he maintains that even under federal
law a defendant might be able to successfully raise a necessity defense for marijuana
possession, and thereby avoid a conviction for marijuana possession. However, while the
issue of whether Mr. Hosford engaged in criminal conduct was raised and decided by the
trial court and ruled upon by the Court of Special Appeals, Mr. Hosford did not file a cross-
petition for certiorari to raise the issue on appeal to this Court. Therefore, we shall not
consider his claims as to this issue. See Md. Rule 8-131(b)(1).
15
are not preempted by federal law and regulations governing federally-subsidized Section
8 project-based housing?16
That question can be broken down into two parts:
A. Was the Court of Special Appeals correct in holding that landlord-tenant law is an
area that is traditionally within the domain of state law and, on that basis, applying
a heightened presumption against federal preemption of Maryland’s landlord-tenant
law, including RP § 8-402.1(b)(1)?
B. If the answer to Question A is “yes,” was the Court of Special Appeals correct in
holding that RP § 8-402.1(b)(1) does not conflict with the congressional intent
behind the statute and regulations mandating certain lease provisions in Section 8
project-based housing and, therefore, that the presumption against federal
preemption is not overcome as to RP § 8-402.1(b)(1)?
For the reasons stated below, we shall hold that the Court of Special Appeals
correctly concluded that landlord-tenant law is an area traditionally within the domain of
the states. And, although we shall decline to endorse the “major damage” standard of
review for areas of law within the traditional domain of the states, we shall hold that the
intermediate appellate court correctly applied a heightened presumption against federal
preemption. Finally, we shall hold that the Court of Special Appeals also was correct to
hold that the presumption against preemption is not overcome as to RP § 8-402.1 because
that statute does not stand in conflict with Congress’ intent behind the mandatory lease
16
In its petition for writ of certiorari, Foghorn phrased the question presented as
follows:
Did the Court of Special Appeals err in its preemption analysis by concluding
[that] [RP § 8-402.1] does not do “major damage” to the clear and manifest
intent of Congress and express language of implementing regulations?
16
provisions at issue. Therefore, we shall affirm the judgment of the Court of Special
Appeals.
II.
STANDARD OF REVIEW
The circuit court granted summary judgment in favor of Foghorn, and Foghorn
appeals from the Court of Special Appeals’ reversal of that grant of summary judgment. A
court may grant summary judgment in favor of the moving party “if the motion and
response show that there is no genuine dispute as to any material fact and that the party in
whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule
2-501(f).
The question of whether a trial court’s grant of summary judgment was
proper is a question of law subject to de novo review on appeal. In reviewing
a grant of summary judgment under [Maryland] Rule 2-501, we
independently review the record to determine whether the parties properly
generated a dispute of material fact, and, if not, whether the moving party is
entitled to judgment as a matter of law. We review the record in the light
most favorable to the nonmoving party and construe any reasonable
inferences that may be drawn from the facts against the moving party.
Boland v. Boland, 423 Md. 296, 366 (2011) (quoting Haas v. Lockheed Martin Corp., 396
Md. 469, 479 (2007)).
Here, the material facts are not in dispute—the parties do not contest that Mr.
Hosford possessed marijuana, and Mr. Hosford has not appealed from the circuit court’s
ruling that such possession was illegal activity in breach of the terms of his lease with
Foghorn. Instead, the sole issue before this Court is the purely legal issue of whether a trial
court could properly find that Mr. Hosford’s breach was “substantial and warrants eviction”
pursuant to RP § 8-402.1(b)(1), or whether that statute is preempted by federal law and
17
regulations governing lease provisions in federally-subsidized housing. Like all questions
of law, we shall review that issue without deference to the conclusions of the trial court, or
the Court of Special Appeals.
III.
DISCUSSION
“Federalism, central to the constitutional design, adopts the principle that both the
National and State Governments have elements of sovereignty the other is bound to
respect.” Arizona v. United States, 567 U.S. 387, 398 (2012). The existence of two
sovereigns allows for “the possibility that laws can be in conflict or at cross-purposes.” Id.
at 398-99. The Supremacy Clause was adopted with such conflicts in mind, and provides
that federal law “shall be the supreme law of the land; and the Judges in every State shall
be bound thereby, any thing in the Constitution or laws of any state to the contrary
notwithstanding.” U.S. Const. Art. VI, § 2.
Nevertheless, the Supreme Court has noted that “[t]his relatively clear and simple
mandate has generated considerable discussion in cases where [courts] have had to discern
whether Congress has pre-empted state action in a particular area.” Lorillard Tobacco Co.
v. Reilly, 533 U.S. 525, 540-41 (2001). Indeed, courts have determined that there are at
least three instances in which state laws are preempted: express, field, and conflict
preemption. First, “[w]here Congress has expressly stated its intent to preempt state law,
federal law prevails” (express preemption). Wells v. Chevy Chase Bank, F.S.B., 377 Md.
197, 209-10 (2003); see also Arizona v. United States, 567 U.S. at 399 (“[T]he States are
precluded from regulating conduct in a field that Congress, acting within its proper
18
authority, has determined must be regulated by its exclusive governance.”). Second,
preemption occurs “even where Congress has not expressly stated its intention in that
regard, if there is evidence of Congress’ intent to occupy a given field, and the state law
falls within that field” (field preemption). Wells, 377 Md. at 210 (citations and internal
quotation marks omitted); see also Arizona v. United States, 567 U.S. at 399 (“The intent
to displace state law altogether can be inferred from a framework of regulation ‘so
pervasive . . . that Congress left no room for the States to supplement it’” or where there is
a “‘federal interest . . . so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject.’”) (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947)). Third, “state laws are preempted when they conflict with
federal law” (conflict preemption). Arizona v. United States, 567 U.S. at 399; see also,
United Food & Comm. Workers Int’l Union, et al. v. Wal-Mart Stores, Inc., et al., --- Md.
---, No. 42, Sept. Term 2016 (June 22, 2017). Conflict preemption “includes cases where
compliance with both federal and state regulations is a physical impossibility,” as well as
“those instances where the challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress[.]” Arizona
v. United States, 567 U.S. at 399 (citations and internal quotation marks omitted).
In this case, the Court of Special Appeals stated that “[t]he parties agree, as do we,
that the concepts of express and field preemption are not applicable to this case.” Hosford,
229 Md. App. at 512. We agree with our brethren on the intermediate appellate court; the
parties do not raise the issue of express or field preemption in this appeal, and we discern
no congressional intent to expressly preempt state landlord-tenant law for federally-
19
subsidized housing or to occupy the entire field of landlord-tenant law as to federally-
subsidized housing. Nor does Foghorn claim that it is impossible to comply with both the
state and federal law at issue. Consequently, we shall limit our discussion to whether RP
§ 8-402.1 “stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress” and therefore must be deemed to be preempted under the
doctrine of conflict preemption.
In conflict preemption, as in all preemption cases, “[t]he purpose of Congress is the
ultimate touchstone[.]” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail
Clerks Int’l Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103 (1963)).
Congress’ intent “primarily is discerned” by examining the language of the federal
statute(s) that allegedly preempt the state law as well as the “statutory framework”
surrounding the federal statute(s). Id. at 486 (citations and internal quotation marks
omitted). But, courts should also consider the “structure and purpose of the statute as a
whole, as revealed not only in the text, but through the reviewing court’s reasoned
understanding of the way in which Congress intended the statute and its surrounding
regulatory scheme to affect business, consumers, and the law.” Id. (citations and internal
quotation marks omitted).
In addition to federal statutes, “an agency regulation with the force of law can pre-
empt conflicting state requirements.” Wyeth v. Levine, 555 U.S. 555, 576 (2009).
However, when assessing the preemptive effect of federal regulations, courts perform their
“own conflict determination, relying on the substance of state and federal law and not on
agency proclamations of pre-emption.” Id. Furthermore, as the Court of Special Appeals
20
noted in its discussion of preemption, “[f]ederal agencies sometimes express views
regarding preemption questions in ways that lack the formality of regulations, e.g., by
compliance handbooks, other guidance materials, and commentaries on regulations.”
Hosford, 229 Md. App. at 511. In such instances, “courts have afforded some weight to
the agency’s explanation of its view, but no weight to its conclusion[.]” Id. As the Supreme
Court explained in Wyeth,
In prior cases, we have given some weight to an agency’s views about the
impact of [state] tort law on federal objectives when the subject matter is
technica[l] and the relevant history and background are complex and
extensive. Even in such cases, however, we have not deferred to an agency’s
conclusion that state law is pre-empted. Rather, we have attended to an
agency’s explanation of how state law affects the regulatory scheme. While
agencies have no special authority to pronounce on pre-emption absent
delegation by Congress, they do have a unique understanding of the statutes
they administer and an attendant ability to make informed determinations
about how state requirements may pose an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress. The weight
we accord the agency’s explanation of state law’s impact on the federal
scheme depends on its thoroughness, consistency, and persuasiveness.
555 U.S. at 576-77 (emphasis and second alteration in original) (citations and internal
quotation marks omitted).
However, when assessing congressional intent and weighing whether a state law
poses an obstacle to congressional purposes or objectives, courts must also apply a
presumption that Congress did not intend to preempt state law. As the Supreme Court has
explained, “because the States are independent sovereigns in our federal system, we have
long presumed that Congress does not cavalierly pre-empt state-law causes of action.”
Medtronic, 518 U.S. at 485. Thus, “[i]n all pre-emption cases, and particularly in those in
which Congress has ‘legislated . . . in [a] field which the States have traditionally occupied,’
21
[courts] ‘start with the assumption that the historic police powers of the States were not to
be superseded by the Federal Act unless that was the clear and manifest purpose of
Congress.’” Id. (quoting Rice, 331 U.S. at 230); see also Bd. of Trs. of Emps.’ Ret. Sys. of
City of Balt. v. Mayor & City Council of Balt. City, 317 Md. 72, 116 (1989) (noting that
“in areas traditionally regulated by state and local governments, there is a strong
presumption against finding federal preemption”).
Thus, due to the presumption against preemption, “[t]he mere fact of ‘tension’
between federal and state law is generally not enough to establish an obstacle supporting
preemption, particularly when the state law involves the exercise of traditional police
power.” Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 241 (2d Cir. 2006).
Indeed, the Supreme Court has held that “[t]he case for federal pre-emption is particularly
weak where Congress has indicated its awareness of the operation of state law in a field of
federal interest, and has nonetheless decided to stand by both concepts and to tolerate
whatever tension there [is] between them.” Wyeth, 555 U.S. at 575 (quoting Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67 (1989)).
Although the presumption against preemption is well-established, and plainly
carries heightened force in instances where the state law at issue is in a field traditionally
occupied by the states, some courts have suggested the presumption imposes an even
higher bar against preemption. In Hillman v. Maretta, the Supreme Court held that “[t]he
regulation of domestic relations is traditionally the domain of state law[,]” and that
therefore there is a presumption against preemption of state statutes regulating domestic
relations and marital property. 133 S. Ct. at 1950. And the Supreme Court held that under
22
that presumption, the state law “must do ‘major damage’ to ‘clear and substantial’ federal
interests before the Supremacy Clause will demand that state law will be overridden[.]”
Id. (quoting Hisquierdo, 439 U.S. at 581). The Court of Special Appeals applied that
standard in its conflict preemption analysis in the instant case. Hosford, 229 Md. App. at
512, 529.
Although several courts have applied the major damage standard in a conflict
preemption analysis to state laws not involving marriage and marital property,17 other
courts appear to restrict the standard solely to conflicts involving state laws governing
domestic relations.18 To date, the Supreme Court has not applied the standard in a case
17
See e.g., In re Tribune Co. Fraudulent Conveyance Litig., 818 F.3d 98, 110-11
(2d Cir. 2016) (discussing the “major damage” standard as “strongest when Congress is
legislating in an area recognized as traditionally one of state law alone” but concluding that
bankruptcy was not such an area); Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1050
(7th Cir. 2013) (applying “major damage” standard to review whether state law restricting
automated “robocalls” was preempted by federal telecommunications statute); Mass. Ass’n
of Private Career Sch. v. Healey, 159 F. Supp. 3d 173, 218 (D. Mass. 2016) (applying
“major damage” standard to review whether state statute restricting telemarketing was
preempted by federal telecommunications statute); Kennedy Tank & Mfg. Co. v. Emmert
Indus. Corp., 67 N.E.3d 1025, 1029-30 (Ind. 2017) (applying “major damage” standard to
determine whether Indiana state ten-year statute of limitations for actions by carriers for
breach of contract was preempted by federal Interstate Commerce Commission
Termination Act’s eighteen–month statute of limitations for actions by carriers); West v.
Seattle Port Comm’n, 380 P.3d 82, 87-88 (Wash. Ct. App. 2016) (applying “major
damage” standard to review whether state statute requiring that all meetings of a governing
body of a public agency be open to the public was preempted by Federal Shipping Act of
1984 as to meetings by ports agency).
18
See, e.g., Guardianship of O.D. v. Dillard, 177 So.3d 175, 186 (Miss. 2015), reh’g
denied (Nov. 12, 2015) (holding that the “major damage” standard applies to a preemption
analysis of state domestic relations law); In re Marriage of Herald & Steadman, 322 P.3d
546, 553 (Or. 2014) (same); Smith v. McIntosh, 70 So.3d 1277, 1280 (Ala. Civ. App. 2011)
(same); Biondo v. Biondo, 809 N.W.2d 397, 399-400 (Mich. Ct. App. 2011) (same).
23
that did not involve a conflict between federal law and state domestic relations law. As the
Supreme Court has yet to clarify whether the “major damage” standard applies in a conflict
preemption analysis as to all state laws in areas of traditional state law regulation, or is
limited solely to state laws regulating marriage and marital property, we decline to adopt
that standard at this time. Instead, we shall apply the well-established presumption against
a judicial finding of conflict preemption, recognizing that the presumption holds the
greatest weight for state laws that are in areas traditionally regulated by the states.
A. State Landlord-Tenant Law and the Presumption Against Federal Preemption
Foghorn contends that the Court of Special Appeals erred in holding that landlord-
tenant law was an area within the traditional domain of state courts and, consequently,
erred in holding that a heightened presumption against federal preemption applied in this
case. Foghorn maintains that the Court of Special Appeals improperly relied upon what
Foghorn characterizes as dicta in Perry v. Housing Authority of City of Charleston, 664
F.2d 1210, 1216 (4th Cir. 1981) (“It would be hard to find an area of the law in which the
states have a greater interest or have had greater involvement than in the legal area of
landlord-tenant.”) and Forest City Residential Management, Inc. ex rel. Plymouth Square
Ltd. Dividend Housing Ass’n v. Beasley, 71 F. Supp. 3d 715, 732 (E.D. Mich. 2014)
(“[S]tate courts have jurisdiction to determine whether, and under what circumstances, a
landlord may evict a tenant for violation of lease provisions.”). Moreover, Foghorn insists
that the Court of Special Appeals’ conclusion that landlord-tenant law is a traditional state
law area “fails to take into account” both “the unique facts of the instant case” and recent
developments in federal law and regulations. In contrast, Mr. Hosford contends that the
24
Court of Special Appeals was correct in holding that landlord-tenant law is a traditional
state law area and, therefore, that the intermediate appellate court did not err in applying
the presumption against preemption.
The origins of American landlord-tenant law, a subset of property law, can be traced
back to the common law of England. See Brown, 350 Md. at 577-79 (discussing the origins
of an action for ejectment in English common law); see also Robert S. Schoshinski,
American Law of Landlord and Tenant § 1:1, 1-2 n.2 (1980); Douglas M. Bregman,
Maryland Landlord-Tenant Law: Practice and Procedure § 1.01-1.04, 1-10 (Matthew
Bender 4th ed. 2010, 2016 Supp.). That common law was imported to the American
colonies, and was retained and further developed by the states following the Revolution.
Bregman, Maryland Landlord-Tenant Law: Practice and Procedure § 1.05, 10-13.
Throughout the eighteenth and nineteenth centuries, landlord-tenant law was primarily a
creature of contract and the common law overseen by state or local courts. Id. In more
recent decades, state legislatures have enacted statutes that have greatly expanded tenant
rights and protections while limiting the power of landlords. See, e.g., Mary Ann Glendon,
The Transformation of American Landlord-Tenant Law, 23 B.C. L. Rev. 503 (1982);
Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and
Consequences, 69 Cornell L. Rev. 517 (1984). Thus, it is clear that landlord-tenant law
has historically been principally within the domain of the states.
25
Furthermore, in addition to the two cases relied upon by the Court of Special
Appeals,19 numerous courts have recognized that landlord-tenant law is an area
traditionally regulated by state and local governments, and one that has never been
federalized. See Lindsey v. Normet, 405 U.S. 56, 68 (1972) (holding that “[t]he
Constitution has not federalized the substantive law of landlord-tenant relations”); Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440 (1982) (noting that “[t]his
Court has consistently affirmed that States have broad power to regulate housing conditions
in general and the landlord-tenant relationship in particular”); Villas at Parkside Partners
v. City of Farmers Branch, Tex., 726 F.3d 524, 565-66 (5th Cir. 2013) (concluding that
local housing regulation was within traditional police power of local jurisdictions); Powers
v. U.S. Postal Serv., 671 F.2d 1041, 1045 (7th Cir. 1982) (recognizing that “a federal
common law of landlord and tenant does not exist”); Hous. & Redevelopment Auth. of
Duluth v. Lee, 832 N.W.2d 868, 873 (Minn. Ct. App. 2013) (holding that “regulation of
landlord-tenant relations is a traditional area of state concern”), aff’d on other grounds, 852
19
Contrary to Foghorn’s assertions, the statements quoted and relied upon by the
Court of Special Appeals in both of the two cases on which it relied are not dicta. “Obiter
dictum” is typically a judicial comment “that is unnecessary to the decision in the case and
therefore not precedential (although it may be considered persuasive).” Black’s Law
Dictionary (10th ed. 2014). The determination of whether landlord-tenant law was in a
traditional state law area is necessary to the holding of both Perry and Forest City. See
Perry, 664 F.2d 1215-16 (concluding that landlord-tenant law is an area in which states
have great interest and involvement as necessary to the court’s determination of whether a
party had met one of the factors in the test stated in Cort v. Ash, 422 U.S. 66, 78 (1975) for
when a federal right of action exists under a federal statute); Forest City, 71 F. Supp. 3d
731-32 (concluding that state courts have jurisdiction over whether to evict a tenant as
necessary to the court’s holding that it would not exercise jurisdiction over a plaintiff’s
claim seeking a declaratory holding as to whether it could evict a tenant). Thus, while both
cases are persuasive authority only, their respective statements of law are not dicta.
26
N.W.2d 683 (Minn. 2014); Rosario v. Diagonal Realty, LLC, 872 N.E.2d 860, 865 (N.Y.
2007) (holding same); Kadera v. Superior Court In & For Cty. of Maricopa, 931 P.2d
1067, 1071 (Ariz. Ct. App. 1996) (holding similarly); Rowe v. Pierce, 622 F. Supp. 1030,
1033 (D.D.C. 1985) (holding similarly); Troupe v. Fairview Apartments, 464 F. Supp. 234,
235 (E.D. Tenn. 1979) (holding similarly).
Finally, as to Foghorn’s claims that the Court of Special Appeals failed to consider
the facts of this particular case or recent developments in federal law, such considerations
are irrelevant to deciding whether the presumption against preemption applies. In Wyeth,
the petitioner, a drug manufacturer, argued “that the presumption against pre-emption
should not apply . . . because the Federal Government has regulated drug labeling for more
than a century.” 555 U.S. at 565 n.3. The Supreme Court rejected that argument, stating
that the petitioner “misunderstands the principle” behind the presumption against
preemption. The Court clarified that the presumption “accounts for the historic presence
of state law but does not rely on the absence of federal regulation.” Id. Here, the recent
developments in federal law or facts specific to this case do not affect the “historic presence
of state law” in the area of landlord-tenant relations, and thus do not affect the application
of the presumption.
Therefore, we hold that the Court of Special Appeals correctly concluded that
landlord-tenant law is in the traditional domain of state law and, consequently, correctly
applied a heightened presumption against federal preemption.
27
B. RP § 8-402.1 Conflict Preemption Analysis
Applying the presumption against preemption and other principles of conflict
preemption discussed above, we must consider whether the requirement in RP §
8-402.1(b)(1) that a court in an eviction action must determine that a tenant’s breach of
lease was “substantial and warrants an eviction” before awarding possession to a landlord
conflicts with, and is thus preempted by, federal statutory and regulatory requirements
governing federally-subsidized Section 8 project-based housing.
1. RP § 8-402.1
RP § 8-402.1 “is the most recent of a trilogy of statutes providing landlords an
expedited remedy for the recovery of leased premises.” Brown, 350 Md. at 576. The first
of that trilogy, RP § 8-401, “permits a landlord to recover possession of leased premises
whenever the tenant fails to pay rent that is currently due and payable.” Id. The second,
RP § 8-402, “deals with tenants holding over after termination of the lease” and permits a
landlord to recover both possession and damages. Id. at 577. The eviction proceedings
under both statutes are expedited and summary in nature—in order to secure a judgment in
his favor, a landlord need prove only nonpayment of any amount of rent under § 8-401, or
a tenant holding over after the expiration of a lease and proper notice to quit under § 8-402.
Id. at 576-77.
In contrast, RP § 8-402.1 provides a different procedure “for recovery of the
premises when the tenant has breached a covenant of the lease, other than the covenant to
pay rent that is currently due.” Id. at 577. In Brown, we traced the evolution of that
provision, starting from common law remedies through the enactment of the three summary
28
eviction statutes. Id. at 577-84. We explained that prior to RP § 8-402.1, a landlord faced
with a breach of lease other than nonpayment of rent or holding over could pursue an action
for breach of contract or a common law action in ejectment. Id. at 582. But, in a common
law action for ejectment, a tenant could move to stay the eviction under equitable
considerations. Id. at 582-83. In order to avoid that prospect, landlords began pursuing
the summary eviction process under RP § 8-402 for breaches other than nonpayment of
rent. Id. at 583. We stated in Brown that “[t]he General Assembly was not content to have
the practice of using § 8-402 continued, but neither did it intend to leave landlords only to
the common law action of ejectment.” Id. at 584.
Consequently, the General Assembly included in RP § 8-402.1 the language that is
the focus of the instant appeal, found in subsection (b)(1) of the statute, which states in
pertinent part:
If the court determines that the tenant breached the terms of the lease and
that the breach was substantial and warrants an eviction, the court shall give
judgment for the restitution of the possession . . . .
(Emphasis added.) The highlighted language mandates that a court weigh equitable factors
before evicting a tenant and granting possession to a landlord.20 Those factors may include
“the actual loss or damage caused by the violation at issue, the likelihood of future
20
We noted in Brown that the language in RP § 8-402.1 “was necessarily fashioned
in the light of . . . the long-standing principle that forfeitures for breach of covenant were
not a matter of right but were subject to the intervention of equity when regarded as unfair
or inappropriate.” 350 Md. at 584. And, we stated that “[t]he inclusion of the phrase in
question, conditioning a forfeiture on a finding that the breach in question warranted that
relief, is in perfect harmony with those considerations[.]” Id.
29
violations, and the existence of effective alternative remedies for past or existing
violations.” Id.
2. Federal Housing Programs and “Section 8” Housing
The federal government made its first major foray into public housing in 1937 with
the enactment of the Housing Act, also known as the Wagner-Steagall Act. Pub. L. No.
75-412, 50 Stat. 888 (1937). Congress passed the Act in order to,
assist the several States and their political subdivisions to alleviate present
and recurring unemployment and to remedy the unsafe and insanitary
housing conditions and the acute shortage of decent, safe, and sanitary
dwellings for families of low income, in rural or urban communities, that are
injurious to the health, safety, and morals of the citizens of the Nation.
Id. at 50 Stat. 888, 896; see also, Roberta L. Rubin, Public Housing Development—Mixed
Finance in the Context of Historical Trends, in Navigating HUD Programs, A
Practitioners’ Guide to the Labyrinth 232-34 (George Weidenfeller & Julie McGovern,
eds. 2012) (discussing the purpose of the Housing Act). While there have been numerous
amendments and policy shifts to the 1937 Housing Act over the decades since its
enactment, the underlying purpose of the Act to provide “decent, safe, and sanitary”
housing for low-income Americans has remained the same. And, as one commentator has
described, “[i]n the years since the creation of the [federal] public housing program,
successive waves of reform have shifted the vision underlying the creation of new public
housing[,]” but “[t]he basic structure . . . as a program in which the federal government
finances development and ownership of housing by state and local agencies [has] remained
30
largely constant[.]” Rubin, supra at 234.21 In 1965, Congress amended the Housing Act
and merged all federal housing agencies into the Department of Housing & Urban
Development (“HUD”). See Department of Housing & Urban Development Act, Pub. L.
No. 89-174, 79 Stat. 667 (1965). HUD remains the federal agency overseeing federal
housing programs today.
The current structure for federally-subsidized housing programs stems primarily
from the Housing and Community Development Act (“HDCA”), Pub. L. 93-383, 88 Stat.
633 (1974), codified at 42 U.S.C. § 1437f. The HDCA amended Section 8 of the original
1937 Housing Act into what has become known as the “Section 8 housing” program.
Section 8 housing is divided into two major categories: the tenant-based program and the
project-based program. See 42 U.S.C. §§ 1437f(b)(2), 1437f(e)(1); see also Michael A.
Reardon and Tatiana Gutierrez Abendschein, The Section 8 Housing Assistance Program,
in Navigating HUD Programs, A Practitioners’ Guide to the Labyrinth, 319-25. In both
programs, tenants pay thirty percent of their adjusted income, and the Section 8 program
pays the difference between the tenant payment and the rent, up to a certain monthly
amount. Reardon and Abendschein, supra at 326. In the instant case, Ruscombe Gardens
21
For a thorough discussion of the evolution of the development of federal public
housing programs see Rubin, supra at 234-81. In the 1990s, significant changes were made
to the public housing system that permitted state and local public housing authorities to
participate in developing “mixed-finance projects” assisted in part by private-sector
sources. Id. at 246-47. However, those changes did not fundamentally alter the structure
of the system as one with significant federal funding but with housing projects overseen
and directed by state and local agencies.
31
Apartments receives such federally-subsidized payments directly through the project-based
Section 8 housing program.
In 1988, Congress amended the Housing Act by enacting the Anti-Drug Abuse Act
(“ADAA”) of 1988. Pub L. No. 100-690, 102 Stat. 4181 (1988). The subchapter of the
ADAA pertaining to public housing projects, entitled the Public Housing Drug Elimination
Act of 1988, contained the following findings of Congress:
The Congress finds that—
(1) the Federal Government has a duty to provide public housing that
is decent, safe, and free from illegal drugs;
(2) public housing projects in many areas suffer from rampant drug-
related crime;
(3) drug dealers are increasingly imposing a reign of terror on public
housing tenants;
(4) the increase in drug-related 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
governmental expenditures; and
(5) local law enforcement authorities often lack the resources to deal
with the drug problem in public housing, particularly in light of the
recent reductions in Federal aid to cities.
102 Stat. 4295, 4301 (1988). Accordingly, Congress revised 42 U.S.C. § 1437d to include
the following provision,
Each public housing agency shall utilize leases which—
***
provide that . . . any drug-related criminal activity on or off such premises,
engaged in by a public housing tenant, any member of the tenant’s
32
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); see also 102 Stat. at 4300.
In 2002, the Supreme Court had cause to interpret the provisions of 42 U.S.C. §
1437d(l)(6) in Department of Housing & Urban Development v. Rucker, 535 U.S. 125
(2002). In that case, a local public housing authority initiated eviction proceedings against
four tenants in state court based upon breaches of the mandatory lease provision in those
tenants’ leases by members of the tenants’ households or by their guests. Id. at 128. The
tenants challenged HUD regulations implementing the provision, contending, among other
claims, that the statute did not require the eviction of “innocent” tenants who did not know,
or have reason to know, of the drug-related criminal activity of household members or
guests. Id. at 129.
The Supreme Court rejected that claim, and held that “42 U.S.C. § 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
whether or not the tenant knew, or should have known, about the activity.” Id. at 130.
However, the Supreme Court emphasized that “[t]he statute does not require the eviction
of any tenant who violated the lease provision[,]” but rather “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
33
leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action[.]”
Id. at 133-34 (citations and internal quotation marks omitted).
3. Federal Housing Program Provisions at Issue in the Instant Case
The changes made by Congress in the ADAA to 42 U.S.C. § 1437d apply only to
traditional public housing programs and do not apply to Section 8 project-based housing
programs such as Ruscombe Gardens. However, in 1998, Congress passed the Quality
Housing and Work Responsibility Act (the “QHWRA”), which extended a substantively
similar statutory requirement to Section 8 programs like Ruscombe Gardens. See Pub. L.
No. 105-276, title v, 112 Stat. 2461, 2518 (1998). The new requirement revised 42 U.S.C.
§ 1437f to include, in pertinent part, the following provision,
Contracts to make assistance payments entered into by a public housing
agency with an owner of existing housing units shall provide (with respect
to any unit) that—
***
(B) (i) the lease between the tenant and the owner shall be for at least one
year or the term of such contract, whichever is shorter, and shall
contain other terms and conditions specified by the Secretary;
(ii) during the term of the lease, the owner shall not terminate the
tenancy except for serious or repeated violation of the terms and
conditions of the lease, for violation of applicable Federal, State, or
local law, or for other good cause;
(iii) during the term of the lease . . . any drug-related criminal
activity on or near such premises, engaged in by a tenant of any
unit, 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[.]
***
34
42 U.S.C. § 1437f(d)(1) (emphasis added). The congressional findings for the QHWRA
did not explain why Congress amended 42 U.S.C. § 1437f to add the mandatory lease
provision. See 112 Stat. 2520-21. Therefore, we shall read the provision in light of the
congressional findings for the earlier version of the provision now contained in 42 U.S.C.
§ 1437d(l)(6), as well as the Supreme Court’s interpretation of that provision in Rucker,
535 U.S. 125.
Also relevant are HUD regulations that govern the termination and eviction of
tenants in Section 8 project-based housing. 24 C.F.R. § 880.607 is the general regulation
controlling termination of tenancy for Section 8 project-based housing programs. That
regulation provides that a landlord may not terminate a tenancy except for certain specified
grounds, which include “[m]aterial noncompliance with the lease” and “[c]riminal activity
by a covered person[,]” such as the drug-related criminal activity addressed in 42 U.S.C. §
1437f(d)(1)(B)(iii) and its other implementing regulations. However, it also clearly states
that “[a]ll terminations must also be in accordance with the provisions of any State and
local landlord tenant law[.]” 24 C.F.R. § 880.607(b)(1)(iv) (emphasis added).
The implementing regulations for the mandatory lease provision in 42 U.S.C. §
1437f(d)(1)(B)(iii) are found at 24 C.F.R. §§ 5.850 et seq. 24 C.F.R § 5.851(b) authorizes
landlords to terminate leases in accordance with the standards set in §§ 5.850 et seq., but
only “in accordance with your leases and landlord-tenant law . . . .” 24 C.F.R § 5.852(a)
describes a landlord’s discretion in screening and evicting tenants and provides, in pertinent
part,
35
(a) General. If the law and regulation permit you to take an action but do not
require action to be taken, you may take or not take the action in accordance
with your standards for admission and eviction. Consistent with the
application of your admission and eviction standards, you may consider all
of the circumstances relevant to a particular admission or eviction case, such
as:
(1) The seriousness of the offending action;
(2) The effect on the community of denial or termination or the failure
of the responsible entity to take such action;
(3) The extent of participation by the leaseholder in the offending
action;
(4) The effect of denial of admission or termination of tenancy on
household members not involved in the offending action;
(5) The demand for assisted housing by families who will adhere to
lease responsibilities;
(6) The extent to which the leaseholder has shown personal
responsibility and taken all reasonable steps to prevent or mitigate the
offending action; and
(7) The effect of the responsible entity’s action on the integrity of the
program.
24. C.F.R. § 5.858 implements the mandatory lease requirement stated in 42 U.S.C. § 1437f
as to drug-related criminal activity, and provides,
The lease must provide that drug-related criminal activity engaged in on or
near the premises by any tenant, household member, or guest, and any such
activity engaged in on the premises by any other person under the tenant’s
control, is grounds for you to terminate tenancy. In addition, the lease must
allow you to evict a family when you determine that a household member is
illegally using a drug or when you determine that a pattern of illegal use of a
drug interferes with the health, safety, or right to peaceful enjoyment of the
premises by other residents.
36
Finally, 24 C.F.R. § 5.861 describes a landlord’s discretion to evict for criminal activity
even in the absence of a conviction, and provides,
You may terminate tenancy and evict the tenant through judicial action for
criminal activity by a covered person in accordance with this subpart if you
determine that the covered person has engaged in the criminal activity,
regardless of whether the covered person has been arrested or convicted for
such activity and without satisfying a criminal conviction standard of proof
of the activity.
(Emphasis added.)
4. Congressional Intent Behind the Federal Provisions at Issue and Whether RP §
8 402.1(b)(1) is an Obstacle to That Intent
Foghorn claims that Congress’ broad goal in enacting 42 U.S.C. §
1437f(d)(1)(B)(iii) was to “achieve federally assisted low-income housing that is decent,
safe[,] and free from illegal drugs.” (Emphasis added.) Foghorn also maintains that
“Congress’ [specific] method of achieving its goal” was to authorize “housing providers
to evict tenants who engage in drug-related criminal activity.” (Emphasis added.)
Foghorn further contends that RP § 8-402.1(b)(1) is an obstacle to the
accomplishment and execution of the Congressional intent to achieve drug-free housing
because Maryland courts might “allow[ ] a tenant to continue to reside in [his] subsidized
housing unit after committing a drug-crime on a purely equitable basis[.]” According to
Foghorn, that would reduce the incentive of tenants not to use illegal drugs, counter to the
Congressional intent to remedy drug-related crime, and would “threaten[ ] the integrity of
the entire housing project and the rights of all tenants residing therein.”
Foghorn also contends that RP § 8-402.1(b)(1) undermines the discretion afforded
to landlords. Foghorn maintains that the “only role of [a] state court in federally-subsidized
37
housing evictions concerning drug-related criminal activity is whether the grounds for
eviction relied upon by the housing provider actually exist.” Foghorn thus insists that “any
other or additional inquiry by [a] state court inevitably acts to limit the housing provider
from exercising its Congressionally-founded discretion, and would [thus] be preempted by
federal law.”
Mr. Hosford responds that Foghorn has misstated Congress’ intent behind the
federal statute and regulations at issue. According to Mr. Hosford, Congress intended to
vest landlords with the discretion to decide whether a breach in a particular case “either
justified maintaining a family in its housing or initiating a termination action.” And Mr.
Hosford contends that rather than standing as an obstacle to federal law, RP § 8-402.1(b)(1)
“work[s] in concert” with federal law.
Initially, we disagree with Foghorn’s statements of the congressional intent behind
the mandate in 42 U.S.C. § 1437f(d)(1)(B)(iii) that all Section 8 project-based housing
must include lease provisions providing that “any drug-related criminal activity on or near
[the project] premises, engaged in by a tenant of any unit, 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.” Our examination of the relevant statutes, regulations, and the
Supreme Court’s holding in Rucker leads to the following conclusions regarding the
congressional intent behind that mandatory lease provision. First, Congress’ broad intent
was to reduce drug-related crime in federal-subsidized housing that threatens resident
safety and causes deterioration of the condition of housing that requires significant
government expenditures. This is clear from the congressional findings that accompanied
38
the enactment of the ADAA and the original mandatory lease provision statute in 42 U.S.C.
§ 1437d(l)(6). See Anti-Drug Abuse Act, 102 Stat. 4295, 4301 (1988) (describing
Congressional findings behind the ADAA, including “(2) public housing projects in many
areas suffer from rampant drug-related crime; (3) drug dealers are increasingly imposing a
reign of terror on public housing tenants; (4) the increase in drug-related 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 governmental
expenditures”).22
In those findings, Congress also stated that “the Federal Government has a duty to
provide public housing that is decent, safe, and free from illegal drugs.” Id. However, it
is clear that Congress recognized that “duty” was an aspirational one. Congress described
“rampant drug-related crime” and a “reign of terror” imposed by drug dealers in public
housing projects, and noted that there had been substantial reductions in federal aid to cities
to address drug-related crime. Id. Congress could not have expected the mandatory lease
provision to resolve such entrenched problems.
Moreover, Congress declined to mandate an absolute, zero-tolerance policy for all
drug-related criminal conduct in public housing or federally-subsidized housing. Congress
has required the eviction of tenants in public housing under other circumstances—for
22
That Congress’ broad intent was to reduce drug-related crime is also consistent
with the original goal of the Housing Act, to “remedy the unsafe and insanitary housing
conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low
income, in rural or urban communities, that are injurious to the health, safety, and morals
of the citizens of the Nation.” Pub. L. No. 75-412, 50 Stat. 888, 896 (1937).
39
instance, 42 U.S.C. § 1437n(f)(2) requires that a public housing agency “immediately and
permanently terminate the tenancy” of anyone convicted of manufacturing or producing
methamphetamines on the premises. However, neither the original ADAA as enacted in
42 U.S.C. § 1437d nor the addition of a similar provision for Section 8 housing in 42 U.S.C.
§ 1437f mandated the eviction of tenants for any possession of illegal drugs or other drug-
related criminal activity.
Thus, contrary to Foghorn’s assertions, in enacting the ADAA and later expanding
it to Section 8 housing, Congress recognized that drug-related criminal activity was a long-
term, systemic problem, and did not intend to “achieve” housing that was entirely free from
illegal drugs.23 Rather, Congress intended to reduce drug-related crime in public housing
projects and federally-subsidized housing, particularly drug-related crime that threatened
resident safety or the maintenance of housing facilities.
The second clearly discernable intent of Congress in enacting 42 U.S.C. §
1437f(d)(1)(B)(iii), was a more specific one, namely, to vest landlords with significant
discretion to bring an eviction action against tenants for any drug-related criminal conduct
in order to effectuate its broader aim. Congress clearly stated that a landlord could bring
an eviction action for drug-related criminal activity “on or near” the rented premises, and
23
Indeed, in light of the prevalence of illegal drugs and drug-related criminal
activity in modern American life, it would be absurd to conclude that Congress intended to
“achieve” a drug-free housing environment solely from the inclusion of a mandatory lease
provision in public housing lease agreements, without providing additional resources for
police or other governmental bodies to tackle drug-related criminal activity directly. We
must reject such an absurd interpretation of the federal statute. See Mayor & Council of
Rockville v. Rylyns Enters., Inc., 372 Md. 514, 550 (2002) (noting that “absurd results in
the interpretive analysis of a statute are to be shunned”).
40
whether by the tenant, “any member of the tenant’s household, or any guest or other person
under the tenant’s control[.]” Id. And, as clarified in HUD regulations, a landlord could
bring such an eviction action even in the absence of a criminal conviction, and without
needing to meet the standards of proof required in criminal cases. See 24 C.F.R. § 5.861.
The Supreme Court has emphasized that a landlord is generally 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[.]” Rucker, 535 U.S. at 134 (citations and internal quotation marks
omitted); see also 24 C.F.R § 5.852 (listing factors that a landlord “may” consider in
determining whether or not to evict for drug-related criminal activity).
However, it is also clear, at least for Section 8 project-based housing programs, that
Congress intended that landlords would act to evict solely by bringing an eviction action
in state or local courts, subject to the provisions of state landlord-tenant law. 42 U.S.C. §
1437f(d)(1)(B)(iii) does not directly specify how evictions are to be carried out, referring
only to “termination of tenancy.” But HUD regulations subsequently clarified the meaning
of that statutory provision. 24 § C.F.R. 880.607, the general regulation controlling
termination of tenancy for Section 8 project-based housing programs, clearly states that
“[a]ll terminations must also be in accordance with the provisions of any State and local
landlord tenant law.” (Emphasis added.) The implementing regulations for 42 U.S.C. §
1437f(d)(1)(B)(iii) similarly state that evictions must be in accordance with state landlord-
41
tenant law. See 24 C.F.R § 5.851(b).24 And, 24 C.F.R. 5.861 clarifies that a landlord may
only move to terminate tenancy and evict “through judicial action” for drug-related
criminal activity by a tenant, household member, or guest. (Emphasis added.)
Thus, Foghorn is incorrect when it contends that “Congress’ [specific] method of
achieving its goal” was to authorize “housing providers to evict tenants who engage in
drug-related criminal activity.” Rather, Congress intended that housing providers in
Section 8 project-based housing programs would have substantial discretion to bring an
eviction action for any drug-related criminal activity. And Congress intended that such
an eviction action would proceed in accordance with state landlord-tenant law provisions
and procedures.
RP § 8-402.1(b)(1) does not pose an obstacle to either the broad or specific
congressional intent behind the mandatory lease provisions at issue. A Maryland court
applying RP § 8-402.1(b)(1) may determine that an individual instance of drug possession
by a tenant in federally-subsidized housing is not a “substantial” breach of the mandatory
lease provision, or does not “warrant eviction.” However, as described above, Congress
did not intend to mandate that every instance of drug possession must result in eviction,
without any consideration of equitable factors. See Rucker, 535 U.S. at 133-34 (noting that
the mandatory lease provision statute at issue in that case “does not require the eviction of
24
24 C.F.R § 5.851(b) states that landlords may act to evict under the lease terms
mandated in 42 U.S.C. § 1437f “in accordance with . . . landlord-tenant law . . . .” Although
the regulation does not directly provide that evictions must be made in accordance with
state landlord-tenant law, as we have previously discussed, there is no federal common law
or statutory provisions regulating landlord-tenant relations—landlord-tenant law is purely
a creature of state and local law.
42
any tenant who violated the lease provision” (emphasis in original)). Indeed, as previously
noted, one of the enabling regulations for 42 U.S.C. § 1437f(d)(1)(B)(iii) includes a list of
equitable considerations for a landlord to consider when choosing whether or not to bring
an eviction action. See 24 C.F.R. § 5.852. Those factors include equitable considerations
such as “[t]he seriousness of the offending action” and “[t]he extent to which the
leaseholder has shown personal responsibility and taken all reasonable steps to prevent or
mitigate the offending action[.]” Id.
Furthermore, as shown in the congressional findings discussed above, Congress was
most concerned about drug-related criminal activity that threatened the health or safety of
residents, or threatened to do significant damage to housing properties. The judicial review
mandated in RP § 8-402.1(b)(1) will not conflict with those core congressional concerns:
If the illegal conduct of a tenant, household member, or guest in federally-subsidized
housing involves a violent drug-related crime, or the distribution of drugs from a rental
unit, or significant property damage caused by drug-related activity, such conduct would
surely be both “substantial” and “warrant eviction.” We agree with the view expressed by
our intermediate appellate court brethren that Maryland trial courts are entirely capable of
balancing equitable considerations that may merit leniency against the need to protect the
safety of others in the housing project and the integrity of the housing project. See Hosford,
229 Md. at 529-30. Thus, we do not believe that the application of RP § 8-402.1(b)(1) will
incentivize drug use, undermine the integrity of housing projects, or threaten the safety or
rights of other tenants.
43
Nor do we agree with Foghorn that a trial court reviewing an eviction to determine
whether it is “substantial” and “warrants eviction” undermines the discretion afforded to
landlords under the federal provisions at issue. Foghorn apparently regards the mandatory
lease provision in 42 U.S.C. § 1437f(d)(1)(B)(iii) as expressing a congressional intent that
state courts must rubberstamp a landlord’s decision to evict, so long as the court determines
that the decision to evict was indeed based on some drug-related criminal activity.
However, as noted above, while Congress clearly intended to afford landlords in Section 8
project-based housing substantial discretion to take action against tenants for any drug-
related criminal activity, HUD regulations have clarified that Congress intended that action
to occur solely by bringing an eviction action in state court in accordance with state
landlord-tenant law. Applying the presumption against a finding of federal preemption,
we conclude that Congress’ intent that evictions would proceed in state court, applying
state landlord-tenant law, is a strong indication that Congress did not intend to preempt that
state law. As the Supreme Court emphasized in Wyeth, “[t]he case for federal pre-emption
is particularly weak where Congress has indicated its awareness of the operation of state
law in a field of federal interest, and has nonetheless decided to stand by both concepts and
to tolerate whatever tension there [is] between them.” 555 U.S. at 575 (quoting Bonito
Boats, Inc., 489 U.S. at 166-67).
Furthermore, RP § 8-402.1 does not limit a landlord’s discretion to bring an eviction
action in any way. Instead, once a landlord has exercised the discretion afforded by
Congress and decided to move to evict, the statute ensures that the proposed eviction is
subject to meaningful judicial review under equitable considerations that have long been
44
part of Maryland landlord-tenant law. See Brown, 350 Md. at 584. In other words, RP §
8-402.1(b)(1) adds a judicial “second look” as to whether equitable considerations merit
relief from eviction, but does not conflict with or obstruct Congress’ intent that the initial
discretion as to whether to bring an eviction action lies solely with a landlord. In this
instance, the federal and state provisions thus work in harmony with one another. See e.g.,
Rosario, 872 N.E.2d at 865 (rejecting an argument that Section 8 housing law and federal
regulations preempted New York state law, and noting that in regulating federally-
subsidized housing, “federal and state law depend on each other; neither excludes the
other”).
The Court of Special Appeals reached a similar conclusion that federal provisions
governing Section 8 housing can work in harmony with RP § 8-402.1 and other Maryland
landlord-tenant statutes providing for summary ejectment procedures in Grady
Management, Inc. v. Epps, 218 Md. App. 712 (2014). In Epps, a landlord in Section 8
project-based housing brought successive breach of lease actions against a tenant for
making loud noises and threatening other tenants. Id. at 716-19. The intermediate
appellate court determined that the lease at issue was subject to a federal requirement that
a landlord must show “good cause” to refuse to renew tenancy. Id. at 728-32. The landlord
in Epps contended that “‘landlords are not held to the more stringent requirements
established by Maryland’s breach of lease statute’ when establishing good cause to
terminate or to not renew a lease at the end of a term.” Id. at 732. The Court of Special
Appeals disagreed, holding that “[t]he requirement of [RP] § 8-402.1 that a claimed
‘breach’ must ‘warrant[] an eviction’ does not, in our view, impose on a landlord seeking
45
to terminate a project-based subsidized lease a ‘more stringent’ demonstration of good
cause than is necessary.” Id. at 734. Similarly, in this case, we conclude that RP § 8-402.1
does not impose a “more stringent” standard for a landlord to secure an eviction for a breach
of lease due to drug-related criminal activity than that set forth in federal law and
regulations—it merely subjects the landlord’s discretionary decision to bring an eviction
action to appropriate judicial review.
Foghorn relies upon the Supreme Court’s holding in Rucker as support for his
contention that Congress intended to vest landlords with effectively unreviewable
discretion to evict. In Rucker, the Supreme Court stated that “42 U.S.C. § 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
whether or not the tenant knew, or should have known, about the activity.” 535 U.S. at
130 (emphasis added). However, the Supreme Court’s emphasis on public housing
authorities’ discretion must be viewed in context—its holding was in response to a claim
that the statute should be interpreted to mean that public housing authorities did not have
the discretion to evict “innocent” tenants who did not directly participate in drug-related
criminal activity. Whether the federal statute preempted state law or the discretion of state
courts was not at issue, and was not addressed by the Supreme Court. Thus, Rucker does
not stand for the proposition that Congress intended local public housing authorities have
absolute discretion to evict tenants under 42 U.S.C. § 1437d(l)(6), and that a state court
must merely rubberstamp the landlord’s decision. Further, to the extent that Rucker may
conflict with our holding today, we note that it involved an interpretation of 42 U.S.C. §
46
1437d governing public housing projects, and not § 1437f governing the type of Section 8
project-based housing that is at issue before us. The regulations discussed above specific
to § 1437f clarify that, at least for that statute, a landlord must pursue an eviction in state
court, and in accordance with state landlord-tenant law.
Foghorn also directs our attention to two agency guidance materials, which it asserts
demonstrate an intent for the federal law to preempt state laws such as the disputed portions
of RP § 8-402.1: HUD’s Handbook 4350.3 and the preamble to 24 C.F.R. § 5.850 et seq.
We accord “some weight” to these agency views, depending on their “thoroughness,
consistency, and persuasiveness.” Wyeth, 555 U.S. at 576-77. However, we do not defer
to the agency’s conclusion that state law is preempted. Id.
The Court of Special Appeals provided a thorough and cogent analysis as to each of
the two guidance documents raised by Foghorn. The Court of Special Appeals first
addressed HUD’s Handbook 4350.3:
Foghorn directs us to the section of the Handbook that discusses
procedures for judicial actions to evict a tenant of federally-subsidized
housing, which states:
Judicial action.
a. An owner must not evict any tenant except by judicial
action pursuant to state and local laws.
***
d. A tenant may rely on state or local laws governing
eviction procedures where such laws provide the tenant
procedural rights that are in addition to those provided
by the regulatory agreements, except where such laws
have been preempted under 24 C.F.R. Part 246, Local
Rent Control, or by other action of the United States.
47
Handbook 4350.3 at [8-13.B.5]
Foghorn overlooks the seemingly clear language in subsection a. and
the first clause in subsection d. Focusing instead on the second clause in
subsection d., Foghorn argues that HUD intended to preempt state laws that
are incongruent with 42 U.S.C. § 1437f and 24 C.F.R. § 5.858 because
subsection d. explicitly references the preemption of state laws. However, .
. . HUD’s example of an “action of the United States” is 24 C.F.R. Part 246.
The introduction to that regulation describes the scope of Part 246:
The regulation of rents for a project coming within the scope
of ‘Subpart B—Unsubsidized Insured Projects’ is preempted
under these regulations only when the Department determines
that the delay or decision of the local rent control board . . .
jeopardizes the Department’s economic interest in a project
covered by that subpart. The regulation of rents for projects
coming within the scope of ‘Subpart C—Subsidized Insured
Projects’ is preempted in its entirety by the promulgation of
these regulations. . . .
24 C.F.R. § 246.1(a) (emphasis added).
The preemption language in 24 C.F.R. § 246.1(a) is explicit. It
suggests to us that, when HUD used the term “other action of the United
States” in Handbook 4350.3, the Department was referring to actions by the
federal government that clearly and unmistakably indicate that state or local
law is preempted. Nothing in the Federal Housing Act explicitly preempts
state and local landlord-tenant laws; and nothing in 24 C.F.R. § 5.850 et seq.
expresses an explicit intent to preempt state or local laws concerning eviction
procedures.
Hosford, 229 Md. App. at 519-20.
The intermediate appellate court then turned to the preamble to the regulation
adopting 24 C.F.R. § 5.850 et seq.:
The preamble is an introductory statement . . . , which contains
information on the final rule such as a summary of the rule, the effective date
of the rule, and other supplementary information on the rule. 66 Fed. Reg.
28776 (May 24, 2001). What is of particular interest to us is a portion of the
preamble to 24 C.F.R. § 5.850 and related regulations that discuss proposed
48
amendments to the regulations which were received by HUD during the
public comment period. Foghorn places special significance on a portion of
HUD’s response to one comment, arguing that it reveals HUD’s intent to
sharply limit the role of state courts in eviction proceedings.
The commenter, a legal services organization, recommended that
HUD modify its proposed regulations for lease provision requirements in
order to:
[P]reserv[e] for [public housing authorities] (and add[] for
courts) ‘discretion to consider all of the circumstances of the
case, including the seriousness of the offense, the extent of
participation by family members, and the effects that the
eviction would have on family members not involved in the
proscribed activity.’
Id. at 28782 (emphasis added).
In response, the Office wrote:
...
The statute does not authorize courts to exercise the same type
of discretion. Courts determine whether a violation of the lease
has occurred and whether the lease provides that such a
violation is grounds for eviction of the persons whom the
[public housing authority] seeks to evict. . . . [I]t is important
to recognize that . . . a court’s function under HUD’s
regulations is to determine whether an eviction meets the
requirements of the lease . . . and not whether a [public housing
authority] has considered additional social and situational
factors that HUD’s regulations authorize, but do not require,
a [public housing authority] to consider in making its decision
whether or not to pursue eviction of any family or individual
whom, under the lease, the [public housing authority] has the
legal right to evict.
Id. (emphasis added).
Based on this language, Foghorn argues that HUD clearly intended to
restrict State courts’ role in eviction actions to determining whether a tenant
of federally-subsidized housing breached the lease. But HUD’s response
49
cannot be read in a vacuum; it was written in response to a comment, and
must be considered in that context.
The commenter suggested that HUD should modify the regulation in
order to enable State courts to consider “all of the circumstances of the case”
before ordering an eviction. In response, the Office explained that it would
not implement this recommendation because HUD’s authority to enact the
regulations derived from the governing statute . . . and the statute does not
provide courts with authority to exercise discretion over eviction actions for
tenants of federally-subsidized housing. . . .
The Office further explained that, as far as [HUD was] concerned, the
courts’ role is limited to determining whether a tenant has breached the lease
and that courts do not have the authority to decide “whether a [landlord] has
considered additional social and situational factors that HUD’s regulations
authorize, but do not require[.]”
The Office’s response to the comment makes it clear that [in the view
of HUD] a state court could not, as a prerequisite to ordering eviction,
consider whether a landlord’s decision to initiate eviction proceedings was
consistent with HUD guidelines. . . . But deciding whether a landlord’s
decision to seek eviction is consistent with federal policy is one thing;
deciding whether eviction is appropriate based upon considerations of equity
or other principles arising out of state law is quite another. The 2001
preamble does not purport to address the authority of state courts to exercise
discretion pursuant to state statutory or common law.
Id. at 520-23 (footnotes omitted).
We agree with the intermediate appellate court’s conclusion that “neither Handbook
4350.3 nor the preamble to 24 C.F.R. § 5.850 et seq. express[] an intent to preempt state
laws such as the disputed provisions of RP § 8-402.1.” Id. at 519. Indeed, by emphasizing
that eviction may only take place through “judicial action pursuant to state and local
laws[,]” Handbook 4350.3 indicates that the agency’s understanding of congressional
intent is for evictions by landlords in Section 8 housing to occur in state courts, subject to
state landlord-tenant law. And, in the preamble to 24 C.F.R. § 5.850 et seq., HUD merely
50
clarified that, in the agency’s view, the federal statute did not expressly provide for
reviewing a landlord’s exercise of discretion in deciding whether to move to evict. HUD
did not purport to address whether state courts have the authority to review an eviction for
equitable considerations under state law.
In summary, we have determined that the mandatory lease provision in 42 U.S.C. §
1437f that provides that “any drug-related criminal activity” on or near Section 8 project-
based housing by a tenant, household member, or guest “shall be cause for termination of
tenancy” embodies two distinct congressional objectives. First, Congress broadly intended
to reduce drug-related crime in public housing projects, particularly drug-related crime that
threatened resident safety or the maintenance of public housing facilities. Second,
Congress’ more specific intent was that housing providers in Section 8 project-based
housing would have substantial discretion to bring an eviction action in state court for any
drug-related criminal activity, but only in accordance with state landlord-tenant law
provisions and procedures. And we have determined that RP § 8-402.1(b)(1)’s requirement
that a trial court review a breach of lease to determine if it is “substantial and warrants an
eviction” does not conflict with either the broad or specific congressional intent. We
therefore hold that the presumption against a judicial finding of federal preemption of a
state statute is not overridden, and that RP § 8-402.1(b)(1) does not conflict with the
mandatory lease provision of 42 U.S.C. § 1437f and its enabling regulations.25
25
The Court of Special Appeals likewise found no Congressional intent to require
state courts to merely blindly approve a landlord’s decision to evict without exercising any
judicial review under state landlord-tenant law. Hosford, 229 Md. App. at 523-24.
However, the intermediate appellate court also concluded that, hypothetically, Congress
51
Consequently, we hold that the Court of Special Appeals properly reversed the circuit
court’s grant of summary judgment in favor of Foghorn.
5. Relevant Out-of-State Cases
The parties have directed us to several out-of-state cases in which courts have
considered whether federal mandatory lease provisions governing Section 8 project-based
housing, or similar provisions in other federally funded housing programs, preempt state
law. We conclude that our holding today that RP § 8-402.1(b)(1) is not preempted by the
federal provisions at issue is consistent with the holdings of those out-of-state cases.
Several of the cases involve whether state “right to cure” provisions were preempted
by federal mandatory lease provisions. See Milwaukee City Hous. Auth. v. Cobb, 860
N.W.2d 267 (Wis. 2015); Hous. Auth. of Covington v. Turner, 295 S.W.3d 123 (Ky. Ct.
“could have required state courts to order evictions upon a finding of a breach of the lease
due to drug-related activity.” Id. That may not be correct. As the Court of Special Appeals
noted, “[a] Congressional mandate that state courts rubber-stamp a landlord’s decision,
without considering otherwise applicable equitable factors arising from state law,” would
necessarily “intrude upon not only the concept of comity that is the cornerstone of our
federal system of government but also upon the functioning of the judiciary as an
independent branch of government.” Id. at 524. Indeed, it is possible that such a
congressional mandate would trample so significantly upon the exercise of the traditional
powers of the states, or the role of the courts to exercise their judicial function to decide
the cases or controversies before them, that it would be deemed to violate the separation of
powers principles of our Constitution. See Bond v. United States, 564 U.S. 211, 221 (2011)
(holding that “[f]ederalism secures the freedom of the individual” because it “allows States
to respond, through the enactment of positive law, to the initiative of those who seek a
voice in shaping the destiny of their own times without having to rely solely upon the
political processes that control a remote central power”); Bank Markazi v. Peterson, 136
S. Ct. 1310, 1324 n.19 (2016) (noting that “Congress may not employ the courts in a way
that forces them to become active participants in violating the Constitution”) (citations and
internal quotation marks omitted). As we have found Congress did not intend to require
that state courts rubberstamp a landlord’s decision to evict, we need not decide whether
such a requirement would offend separation of powers principles.
52
App. 2009); and, Scarborough v. Winn Residential L.L.P./ Atlantic Terrace Apts., 890 A.2d
249 (D.C. 2006). “Right to cure” provisions mandate that a landlord or public housing
authority must afford a tenant the opportunity to cure or remedy a breach of lease within a
reasonable period of time before moving to evict. As such provisions limit a landlord’s
discretion to bring an eviction, they would indeed seem to conflict with the congressional
intent to vest a landlord or public housing agency with the discretion to bring an eviction
based on any drug-related criminal activity on or near the public housing premises by a
tenant, household member, or guest.26 However, as previously discussed, RP §
8-402.1(b)(1) does not mandate that a landlord take certain steps prior to bringing an
eviction action, or otherwise infringe upon the discretion afforded landlords under federal
law. Thus, those cases are distinguishable from our holding today.
Other cases involve “innocent tenant” statutes, which mandate that a public housing
authority or landlord cannot terminate the lease of a tenant who breached that lease due to
drug-related or other criminal misconduct conducted on public housing premises by guests
26
The District of Columbia Court of Appeals and Wisconsin Supreme Court have
determined that “right to cure” statutes were preempted by federal law governing federally-
subsidized housing because those statutes undermine a landlord’s discretion. See Cobb,
860 N.W.2d at 276 (holding that “a right to cure past illegal drug activity is in conflict with
Congress’ method of achieving [its] goal by allowing eviction of tenants who engage in
drug-related criminal activity”); Scarborough, 890 A.2d at 257 (holding that “the cure
opportunity provided by [the State law] . . . 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 during the thirty days following notice”). However, Kentucky’s
intermediate appellate court has held that a “right to cure” provision was not preempted by
federal law. See Turner, 295 S.W.3d at 127. The court reasoned that requiring a housing
authority to give notice of a violation and permit a tenant to remedy it serves the overall
purpose of the federal mandatory lease provisions to deter and reduce illegal drug use. Id.
53
or others when the tenant was not aware of the misconduct or could not have prevented it.
For instance, in Boston Housing Authority v. Garcia, the Supreme Judicial Court of
Massachusetts considered a state statutory provision governing public housing that it had
previously interpreted to mean that a tenant was entitled to relief from lease termination if
“special circumstances indicate that the tenant could not have foreseen the [criminal]
misconduct or was unable to prevent it by any available means, including outside help[.]”
871 N.E.2d 1073, 1074 (Mass. 2007) (citations and internal quotation marks omitted). The
Massachusetts court noted that the Supreme Court in Rucker had rejected a similar defense
and held that a tenant could be evicted for the wrongdoing of a household member or guest
even if the tenant was unaware of the misconduct. Id. at 1078 (discussing Rucker, 535 U.S.
at 133-34). Thus, the court held that the Massachusetts statutory “special circumstances”
defense would “substantially interfere” with the congressional objective behind 42 U.S.C.
§ 1467d, and was therefore preempted. Id.; see also Hous. Auth. & Urban Redevelopment
Agency v. Spratley, 743 A.2d 309, 313-14 (N.J. Super Ct. App. Div. 1999) (holding that
state statute that, in effect, prohibited eviction of “blameless tenants” was preempted by
federal mandatory lease provisions); City of South S.F. Hous. Auth. v. Guillory, 49
Cal.Rptr.2d 367, 370-71 (Cal. App. Dep’t Super. Ct. 1995) (holding that state statute that
tenant contended required “a showing of knowledge or that the evicted tenant had reason
to know of a family member’s illegal conduct” was preempted by federal mandatory lease
provisions).
As the Supreme Judicial Court of Massachusetts explained in Garcia, an “innocent
tenant” provision has the effect of entirely removing the discretion of a public housing
54
agency or landlord to move to terminate tenancy for drug-related criminal activity in the
absence of evidence that the illegal activity was known to the tenant. 871 N.E.2d at 1078
(noting that under an “innocent tenant” provision “[a] housing authority would . . . have
lost the ability to terminate a tenant who violated her lease by not preventing her household
member from engaging in drug related criminal activity, an ability Congress intends to
preserve for housing authorities”). Thus, such provisions directly obstruct and conflict
with the congressional intent to vest landlords with substantial discretion to bring an
eviction action for any drug-related criminal activity on or near the leased premises by a
tenant, household member, or guest.
However, unlike an “innocent tenant” statute, RP § 8-402.1(b)(1) does not mandate
or require that a court deny an eviction if a tenant was not aware of drug-related criminal
activity by a household member or guest. Instead, consistent with Congress’ decision not
to require eviction for any drug-related criminal activity whatsoever, a Maryland court
applying RP § 8-402.1(b)(1) considers whether eviction is equitable under the
circumstances. There may well be circumstances where a tenant contends that he was not
aware of drug-related misconduct by a household member or guest, but the serious or
violent nature of the illegal activity posed a safety risk to others in the housing complex,
or caused substantial expenses for the landlord. In those circumstances, a court should find
that the activity was a “substantial” breach of lease that “warrants eviction.” Thus, the
equitable review of a decision to evict does not conflict with Congress’ intent to preserve
the right of landlords to be able to evict such tenants in a state court eviction action.
55
We further note that several state courts have held that the kind of general equitable
review of a breach of lease mandated under RP § 8-402.1(b)(1) does not conflict with
federal law so as to require preemption. In Garcia, even though the Massachusetts
Supreme Judicial Court had found the “special circumstances” defense preempted, the
court noted that Massachusetts law “still requires ‘cause’ before a public housing tenancy
may be terminated[.]” 871 N.E.2d at 1080. Therefore, the court held that “a housing
authority’s decision to terminate a tenant’s lease is not beyond challenge in the Housing
Court, based on the claim that the decision was made ‘without cause’ . . . or otherwise
constituted an unlawful abuse of discretion[.]” Id. Ohio courts have similarly held “federal
law on terminating a public housing tenancy of a guest does not preempt the equity
authority of the court[.]” Cuyahoga Metro. Hous. Auth. v. Harris, 861 N.E.2d 179, 181-
82 (Cleveland Munic. Ct., Hous. Div. 2006) (noting that federal law permitted the eviction
of “innocent tenants” but affirming a magistrate’s decision denying eviction of a tenant in
a public housing project who “neither knew nor should have known” that a guest at her
rental unit was involved in drug-related criminal activity and who cooperated with police
search of her rental unit because the tenant had “established to the satisfaction of the court
that equity prohibits her eviction from the premises”); see also Dayton Metro. Hous. Auth.
v. Kilgore, 958 N.E.2d 187, 190-92 (Ohio Ct. App. 2011) (discussing Harris, and agreeing
with its legal conclusion that under Ohio state law equitable considerations could bar
forfeiture, but holding that such equitable considerations did not bar forfeiture when, unlike
in Harris, the tenant had “[made] her apartment open and available to” her guests, and
thereby “furthered her guests’ criminal purposes to use that location to engage in drug-
56
related activity”); Cuyahoga Metro. Hous. Auth. v. Davis, 967 N.E.2d 1244, 1248-49 (Ohio
Ct. App. 2011) (discussing Harris and Kilgore, and holding that trial court had properly
granted judgment of eviction against public housing tenant whom a magistrate had clearly
believed lied to police and who had left guests conducting drug-related activity alone in
her apartment).27
IV.
CONCLUSION
In summary, we hold that RP § 8-402.1(b)(1) is not preempted under the doctrine
of conflict preemption by federal provisions mandating lease terms for Section 8 project-
based housing that provide that “any drug-related criminal activity on or near such premises
27
The Court of Special Appeals determined that its holding that preemption did not
apply was supported by another out-of-state decision, Eastern Carolina Regional Housing
Authority v. Lofton, 767 S.E.2d 63 (N.C. Ct. App. 2014). See Hosford, 229 Md. App. at
526-27. In Lofton, North Carolina’s intermediate appellate court held that in order to evict
a tenant under North Carolina law, a landlord must prove, among other requirements, that
“enforcing the forfeiture is not unconscionable.” 767 S.E.2d at 67 (citations and internal
quotation marks omitted). The North Carolina court concluded that the “unconscionability
requirement” does not stand as an obstacle to the federal goals and purposes behind the
mandatory lease provisions authorizing the termination of lease for drug-related criminal
activity in 42 U.S.C. § 1467d(l)(6). Id. at 69-71. Consequently, the North Carolina court
held that the “unconscionability requirement” was not preempted by federal law, and that
the trial court thus did not err in rejecting eviction. Id. at 71. However, the North Carolina
Supreme Court subsequently rejected the intermediate appellate court’s analysis, holding
that “the equitable defense of unconscionability is not a consideration in summary
ejectment proceedings” under North Carolina law. E. Carolina Reg’l Hous. Auth. v.
Lofton, 789 S.E.2d 449, 452 (N.C. 2016). The North Carolina Supreme Court upheld the
judgment of the intermediate appellate court, but on the separate grounds that the housing
authority failed to exercise any discretion in deciding whether to move to evict the tenant.
Id. at 454. As the basis for the North Carolina intermediate appellate court’s ruling was
explicitly rejected by the state’s Supreme Court, we do not rely on that decision as
persuasive authority.
57
. . . shall be cause for termination of tenancy[.]” 42 U.S.C. § 1437f(d)(1)(B)(iii). As
described above, the only conflict preemption issue in this case is whether RP §
8-402.1(b)(1) “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress[.]” Arizona v. United States, 567 U.S. at 399 (internal
quotation marks omitted). Although the conflict preemption inquiry focuses on
congressional intent, courts must also apply a presumption that Congress did not intend to
preempt state law. See Medtronic, 518 U.S. at 485. And that presumption carries greater
weight when Congress legislates “in a field which the States have traditionally occupied.”
Id. (quoting Rice, 331 U.S. at 230).
RP § 8-402.1(b)(1), which governs eviction actions for breaches by a tenant other
than the nonpayment of rent, is part of Maryland’s landlord-tenant law. Landlord-tenant
law is an area traditionally regulated by state and local governments, and one that has never
been federalized. Consequently, in this case, a heightened presumption against preemption
applies in our analysis of Congress’ intent.
With that presumption in mind, we determine the federal law and regulations at
issue express both a broad and specific congressional intent. Broadly, Congress intended
to reduce drug-related crime in federally-subsidized housing because such crime threatens
resident safety and causes deterioration of the condition of housing that requires significant
government expenditures. Specifically, Congress intended to vest landlords with
substantial discretion to bring an eviction action against tenants for any drug-related
criminal conduct in order to effectuate its broader aim.
58
The requirement in RP § 8-402.1(b)(1) that a court determine that a tenant’s breach
was “substantial and warrants eviction” does not pose an obstacle to or otherwise frustrate
either Congress’ broad or specific intent. Trial courts applying RP § 8-402.1(b)(1) can
balance equitable considerations against the need to protect the safety of others tenants and
the integrity of a housing project. And a tenant’s actions that endanger others or cause
significant property damages would properly be considered “substantial” and to “warrant[]
eviction.” Furthermore, the congressional emphasis on a landlord’s discretion to bring an
eviction action in state court based on any drug-related criminal activity that breaches a
tenant’s lease does not imply an intent to circumscribe the discretion of a state court to
review that breach for long-standing state law equitable considerations. Consequently, we
conclude that RP § 8-402.1(b)(1) is not preempted by federal law. Therefore, we shall
affirm the holding of the Court of Special Appeals, and remand the case to the circuit court
for further proceedings consistent with this opinion.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
59