Petition for Writ of Certiorari — Chateau Foghorn LP, Petitioner v. Wesley Hosford

Supreme Court briefNov 22, 2017

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APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Opinion of

The Court of Appeals of Maryland

Re: Affirming the Decision of the Court of Special

Appeals

entered August 28, 2017 ................................ 1a

Opinion of

The Court of Special Appeals of Maryland

Re: Reversing the Judgment of the Circuit Court

entered September 1, 2016 .......................... 79a

Order of

The Circuit Court for Baltimore City

Re: Declining to Alter or Amend Judgment

entered June 15, 2015 ................................ 122a

Memorandum Opinion of

The Circuit Court for Baltimore City

Re: Granting Plaintiff’s Motion for Summary

Judgment

entered March 23, 2015 ............................. 124a

Order of

The Circuit Court for Baltimore City

Re: Granting Plaintiff’s Motion for Summary

Judgment

entered March 23, 2015 ............................. 138a

U.S. Const. Art. VI, § 2 ......................................... 140a

Md. Code Ann., Real Prop., § 8-402.1 .................. 141a

iia

21 U.S.C. § 812(c)(c)(10) ....................................... 145a

42 U.S.C. § 1437d(l) .............................................. 146a

42 U.S.C. § 1437f(d)(1).......................................... 150a

42 U.S.C. § 11901.................................................. 153a

24 C.F.R. § 5.852 (2016) ....................................... 155a

24 C.F.R. § 5.858 (2015) ....................................... 158a

24 C.F.R. § 5.861 (2015) ....................................... 159a

24 C.F.R. § 247.6 (2005) ....................................... 160a

24 C.F.R. § 982.310 (2016) ................................... 161a

24 C.F.R. § 983.257 (2016) ................................... 169a

Excerpts from

Brief for the United States as Amicus Curiae

Scarborough v. Winn Residential L.L.P./

Atlantic Terrace Apartments

(District of Columbia Court of Appeals)

filed November 22, 2005 ............................ 170a

[ENTERED: August 28, 2017]

Chateau Foghorn LP v. Wesley Hosford, No. 73,

September Term, 2016. Opinion by Getty, J.

CONSTITUTIONAL LAW — PREEMPTION —

CONFLICT PREEMPTION — LANDLORDTENANT 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

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.

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 § 8402.1 does not conflict with the congressional intent

behind the federal law and regulations at issue and,

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.

therefore, we shall hold that the statute is not

preempted by federal law.

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 housing for

low-income elderly and disabled tenants that is

subsidized through a federal “Section 8” projectbased 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:

2 Mr. Hosford’s condition is referred to in the record as either

“quadriplegia” or “quadriparesis.”

3 The “Section 8” project-based rental program is discussed in

greater detail in Part III.B of this opinion.

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. . . .

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.

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.

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.

* * *

VIOLATION

PROVISIONS

THE

SHALL

ABOVE

MATERIAL VIOLATION OF THE

LEASE AND GOOD CAUSE FOR

TERMINATION OF TENANCY.

single violation of any of the provisions

of this policy shall be deemed a serious

violation and a 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

The exterminators also saw a light machine that Foghorn

contends was a “grow light” for marijuana cultivation.

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

§ 8-402.1 5 against Mr. Hosford in the District Court

5 5 RP § 8-402.1 (“Breach of Lease”) provides in pertinent part

(emphasis added),

(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;

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

of Maryland 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

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.

***

(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

deliver

possession to the landlord. . . .

10a

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;

That, while Mr. Hosford had not been

convicted of a crime for that marijuana

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).

11a

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 drugrelated 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 projectbased 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

12a

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 5602(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.

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.

13a

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 § 5601(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 § 5601 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 §§ 5601(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 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

14a

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,

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).

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”).

15a

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 federallysubsidized 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

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.

16a

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 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

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.

17a

[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

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

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

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.

18a

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 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

19a

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 § 8402.1 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 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 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

20a

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 federallysubsidized 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 drugrelated 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

21a

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 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

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 § 8402.1(b)(1) 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.

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

22a

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 are not

preempted by federal law and regulations governing

federally-subsidized

Section

project-based

housing?

That question can be broken down into two

parts:

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).

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?

23a

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 provisions at issue. Therefore, we

shall affirm the judgment of the Court of Special

Appeals.

24a

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

summary

judgment

under

[Maryland]

Rule

2-501,

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)).

25a

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 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

26a

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 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. --

27a

-, 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-subsidized housing or to occupy the entire

field of landlord-tenant law as to federallysubsidized 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

28a

(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 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

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,

29a

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

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

30a

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 preempt 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,’ [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)).

31a

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 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

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

32a

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 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.

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).

33a

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 Court of

Special Appeals was correct in holding that landlordtenant law is a traditional state law area and,

therefore, that the intermediate appellate court did

not err in applying the presumption against

preemption.

34a

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 57779 (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, landlordtenant 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.

Furthermore, in addition to the two cases

relied upon by the Court of Special Appeals, 19

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

35a

numerous courts have recognized that landlordtenant 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

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.

36a

“regulation of landlord-tenant relations is a

traditional area of state concern”), aff’d on other

grounds, 852 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,

37a

consequently, correctly applied a heightened

presumption against federal preemption.

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

federallysubsidized 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 § 8402, “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 § 8401, or a tenant holding over after the expiration of a

lease and proper notice to quit under § 8-402. Id. at

576-77.

38a

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

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 . . . .

39a

(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 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 WagnerSteagall 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,

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.

40a

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 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

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.

41a

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 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:

42a

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.

43a

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 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.

44a

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 drugrelated 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[.]” 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

45a

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

the

tenant’s

household, or any guest or

46a

other person under the

tenant’s control, shall be

cause for termination of

tenancy[.]

***

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 drugrelated 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).

47a

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,

(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

offending action;

the

(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;

48a

(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 drugrelated criminal activity, and provides,

The lease must provide that drugrelated 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

49a

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.

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

50a

tenants who engage in drug-related

activity.” (Emphasis added.)

criminal

Foghorn further contends that RP § 8402.1(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 drugcrime 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 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

51a

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 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

52a

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 federallysubsidized housing. Congress has required the

eviction of tenants in public housing under other

circumstances—for instance, 42 U.S.C. § 1437n(f)(2)

requires that a public housing agency “immediately

and permanently terminate the tenancy” of anyone

convicted

manufacturing

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

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).

53a

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

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 drugfree 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”).

54a

“on or near” the rented premises, and 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

55a

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 landlordtenant 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

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.

56a

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 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 § 8402.1(b)(1) will not conflict with those core

congressional concerns: If the illegal conduct of a

tenant, household member, or guest in federallysubsidized housing involves a violent drug-related

crime, or the distribution of drugs from a rental unit,

or significant property damage caused by drugrelated activity, such conduct would surely be both

57a

“substantial” and “warrant eviction.” We agree with

the view expressed by our intermediate appellate

court brethren that Maryland trial courts are

entirely

capable

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.

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

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 projectbased 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,

58a

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

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

59a

Section 8 housing can work in harmony with RP § 8402.1 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 projectbased 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 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

60a

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.

§ 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

61a

state laws such as the disputed portions of RP § 8402.1: 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

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.

62a

Part 246, Local Rent Control, or by

other action of the United States.

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

project

covered by that subpart.

The regulation of rents for

63a

projects coming within the

scope of ‘Subpart C—

Subsidized

Insured

Projects’ is preempted in

its

entirety

the

promulgation

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 landlordtenant 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

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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

regulations

that

discuss

proposed

amendments

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

65a

not

involved

proscribed activity.’

the

Id. at 28782 (emphasis added).

In response, the Office wrote:

The statute does not

authorize

courts

exercise the same type of

discretion.

Courts

determine

whether

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

[public

housing

authority] has considered

additional

social

and

situational factors that

HUD’s

regulations

authorize, but do not

require, a [public housing

66a

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 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.

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. . . .

67a

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

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

68a

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 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

69a

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

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 “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

70a

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-ofstate 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. 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

that state courts rubberstamp a landlord’s decision to evict, we

need not decide whether such a requirement would offend

separation of powers principles.

71a

to vest a landlord or public housing agency with the

discretion to bring an eviction based on any drugrelated criminal activity on or near the public

housing premises by a tenant, household member, or

guest. 26 However, as previously discussed, RP § 8402.1(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 or others when the

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.

72a

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

“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).

73a

the

Supreme

Judicial

Court

Massachusetts explained in Garcia, an “innocent

tenant” provision has the effect of entirely removing

the discretion of a public housing 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

74a

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.

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

75a

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-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

27 The Court of Special Appeals determined that its holding

that preemption did not apply was supported by another out-ofstate 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

76a

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 . . . shall be cause for

termination

tenancy[.]”

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).

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.

77a

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 landlordtenant 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.

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

78a

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.

79a

[ENTERED: September 1, 2016]

REPORTED

IN THE COURT OF SPECIAL APPEALS OF

MARYLAND

No. 852

September Term, 2015

WESLEY HOSFORD

CHATEAU FOGHORN LP

Kehoe,

Friedman,

Wilner, Alan M.,

(Retired, Specially Assigned),

JJ.

Opinion by Kehoe, J.

Filed: September 1, 2016

80a

Wesley Hosford appeals from a judgment

entered by the Circuit Court for Baltimore City in

favor of Chateau Foghorn LP (“Foghorn”). Hosford

presents three issues, which we have re-worded:

1. In an eviction action involving federallysubsidized housing, does federal law

preempt the requirement in Maryland

Annotated Code Real Property Article

(“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?

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 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 Hosford’s lease?

The circuit court answered the first question

in the affirmative, but we reach the opposite

conclusion. We will therefore reverse the judgment.

Background

Foghorn owns and manages Ruscombe

Gardens, a federally-subsidized apartment building

in Baltimore. Hosford has resided there since 1989.

81a

Ruscombe Gardens’ units are leased exclusively to

elderly and disabled individuals. Hosford has been

disabled by incomplete quadriparesis as the result of

an accident in 1987.

In 2014, Foghorn hired an extermination

company to treat Ruscombe Gardens for a bedbug

infestation. Two exterminators entered Hosford’s

apartment and saw what looked to them like a

marijuana plant growing in his bathtub. They

reported this to the apartment’s management office.

Someone in the office contacted the police and

Baltimore City Police Officer Phillip G. Tabron

responded. Officer Tabron concluded that the plant

in the bathtub was marijuana, confiscated it, and

issued Hosford a criminal citation for possession of

marijuana. The plant was tested by a police chemist,

who concluded that the plant was marijuana.

Hosford was subsequently charged in the District

Court for Baltimore City with possession of less than

10 grams of marijuana, but the charge was later nol

prossed.

In July, 2014, Foghorn initiated an eviction

action pursuant to RP § 8-402.1 1 against Hosford in

1 Section 8-402.1 provides in pertinent part (emphasis added):

Real Property Article § 8-402.1. Proceedings upon

breach of lease.

(a) Repossession of premises. — (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;

82a

the district court, claiming that Hosford had

breached the following term of his lease:

The Landlord may terminate this Agreement for

the following reasons:

[D]rug

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[.]

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; [and] . . . .

3. The tenant or person in actual possession of the premises

refuses to comply.

(ii) The court shall summons immediately the tenant or person

in possession 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.

....

(3) If either of the parties fails to appear before the court on the

day stated in the summons, the court may continue the case for

not less than six nor more than 10 days and notify the parties

of the continuance.

(b) Judgment for restitution of possession of premises. — (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. . . .

83a

Hosford moved for a jury trial, claiming that

the value of his right to continued occupation of his

apartment exceeded $15,000. 2 After the case was

transferred to the circuit court, Foghorn filed a

motion for summary judgment, asserting that:

1. There was no genuine dispute of fact that

appellant had marijuana in his apartment.

2. Possession of marijuana was illegal under

Maryland law at the time of Hosford’s arrest,

and also illegal under federal law, and thus

constituted drug-related criminal activity in

violation of the lease.

3. Because Ruscombe Gardens was a

federally-subsidized housing project, federal

law vests discretion in landlords to decide

whether a tenant should be evicted for drugrelated criminal activity. These same laws

preempt RP § 8-402.1’s requirement that a

court can order eviction only if the breach is

substantial and warrants eviction.

2 See Cottman v. Princess Anne Villas, 340 Md. 295, 297 (1995)

and Carroll v. Housing Opportunities Comm’n, 306 Md. 515,

524–25 (1986) (For purposes of deciding whether the parties in

an eviction action have the right to a jury trial, the amount in

controversy is calculated by multiplying the yearly fair market

rent by the number of years of the tenant’s remaining life span

if the lease automatically renews absent good cause to

terminate.). Hosford’s lease contains such a provision and

Foghorn does not contest that application of this formula yields

an amount in excess of $15,000.

84a

From these premises, Foghorn argued that the

only issue before the court was whether Hosford

breached the lease. As to that issue, Foghorn

asserted that there was no dispute of material fact

as to whether Hosford possessed marijuana in his

apartment and that his possession of it constituted a

“drug-related criminal activity,” in violation of the

lease.

In response, Hosford claimed that there was a

dispute of material fact as to whether the plant in

his apartment was marijuana. Second, he contended

that Foghorn was not entitled to summary judgment

as a matter of law because: (a) if he did possess

marijuana, it was not a criminal activity, and thus

not a breach of the lease; and (b) even if the action

did breach the lease, the court must still determine

whether the breach was “substantial” and “warrants

eviction” pursuant to RP § 8-402.1. Hosford also

presented medical records indicating that he suffers

from painful muscle spasms as a result of his

physical condition, as well as an affidavit from an

associate professor at The Johns Hopkins School of

Medicine, stating that use of marijuana “is likely to

provide . . . therapeutic or palliative relief” for

persons suffering from chronic pain and muscle

spasticity associated with quadriparesis.

On March 23, 2015, the circuit court granted

Foghorn’s motion for summary judgment. In its

accompanying written opinion, the court first

concluded that the exterminators’ affidavits and,

most significantly, the police chemist’s report,

established there was no dispute of material fact

that there was a marijuana plant in Hosford’s

85a

apartment when the exterminators entered the

apartment.

Second, the court was not persuaded by

Hosford’s arguments that the possession of the

marijuana was not criminal. The court noted that,

even though Maryland “no longer punishes the

possession of less than ten grams of marijuana as a

crime,” the pertinent amendment to Maryland Code

Criminal Law (“CL”) Article § 5-601(c)(2)(ii) 3 became

effective on October 1, 2014, that is, after the

marijuana plant was discovered in Hosford’s

apartment.

The court then turned to Hosford’s assertion

that possession of marijuana in small amounts for

medical purposes was not a criminal offense. The

court stated that the statute in question, CL § 5601(c)(2)(iii)(1), 4 makes “medicinal use for a

3 CL § 5-601(c)(2)(ii) states:

(ii) 1. A first violation of finding of guilt under this section

involving the use or possession of less than 10 grams of

marijuana is a civil offense punishable by a fine not exceeding

$100.

2. A second violation of finding of guilt under this section

involving the use or possession of less than 10 grams of

marijuana is a civil offense punishable by a fine not

exceeding $250.

3. A third or subsequent violation of finding of guilt under

this section involving the use or possession of less than 10

grams of marijuana is a civil offense punishable by a fine

not exceeding $500.

....

4 CL § 5-601(c)(3)(iii)(1) states:

86a

debilitating medical condition an affirmative

defense.” (Internal quotation marks omitted).

Acknowledging that no appellate court had yet

addressed the operation and effect of the statute, the

court reasoned that, based upon “the ordinary

operation of affirmative defenses in criminal cases

. . . a defendant successfully asserting the

affirmative defense would escape conviction

altogether.” The court observed, however, that there

is no corresponding affirmative medical marijuana

defense in the federal Controlled Substances Act. 5

The court reasoned that, because “marijuana

remains a federally prohibited Schedule I

substance”:

[Foghorn] may proceed on the basis

that the possession of any quantity of

marijuana is a crime under federal law.

Defendant Hosford’s assertion of the

medical

use

affirmative

defense

In a prosecution for the use or possession of marijuana under

this section, it is an affirmative defense that the defendant

used or possessed marijuana because:

A. the defendant has a debilitating medical condition that has

been diagnosed by a physician with whom the defendant has a

bona fide physician-patient relationship;

B. the debilitating medical condition is severe and resistant to

conventional medicine; and

C. marijuana is likely to provide the defendant with

therapeutic or palliative relief from the debilitating medical

condition.

5 See 21 U.S.C. Chapter 13, Part D.

87a

therefore would be irrelevant, unless

the 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.

(Emphasis added.)

The court then turned to whether “the 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 court decided that the answer to the question

was “no.” It stated:

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

88a

alleged breach is substantial or that it

warrants eviction. 6

The court concluded “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). The circuit court

relied upon three decisions, Milwaukee City Housing

Authority v. Cobb, 361 Wis.2d 359 (2015); Boston

Housing Auth. v. Garcia, 449 Mass. 727 (2007); and

Scarborough v. Winn Residential L.L.P./Atlantic

Terrace Apts., 890 A.2d 249 (D.C.2006). (We will

discuss these cases, together with additional

authorities, later in the opinion.)

Hosford filed a motion to alter or amend the

judgment, which was denied. This appeal followed.

Analysis

We will reverse the judgment of the circuit

court. As we will explain, RP § 8402.1 grants to

courts the authority to consider equitable and

similar factors before granting a landlord’s request

for an eviction. In order for this portion of RP § 8The circuit court cited Brown v. Housing Opportunities

Commission of Montgomery County, 350 Md. 570, 576-84 (1998)

and Grady Management, Inc. v Epps, 218 Md. App. 712 (2014),

as cases dealing with the relationship between § 8-402.1 and

federal regulations governing federally-subsidized housing. The

circuit court concluded that neither case provided significant

guidance. We will discuss both of these cases later in the

opinion.

89a

402.1 to be preempted by federal law, the exercise of

such authority must cause “major damage” to “clear

and substantial federal interests.” Foghorn asserts

that the federal interest at issue in this case is the

right of a landlord, at its unfettered discretion, to

evict a tenant if that tenant has been engaged in

“drug-related criminal activity.” Foghorn also argues

that the circuit court’s conclusion is fully supported

by the authority cited in its opinion.

Foghorn’s arguments are not persuasive. As

we will explain, the relevant federal statute, its

implementing regulations, and the pertinent

Department of Housing and Urban Development

(“HUD”) guidelines, demonstrate that there are two

closely-related federal interests at stake in this case.

The first is that residents of federally-supported

housing be protected against the effects of criminal

activity in general, and drug-related criminal

activity in particular. The second federal interest is

that landlords have discretion to initiate eviction

proceedings in such situations. Those same

materials, however, make it clear that a landlord

may evict a tenant only by recourse to state or local

landlord-tenant law and that those laws may provide

the tenant with additional protections. The cases

relied upon by the circuit court, i.e., Cobb, Garcia,

and Scarborough, dealt with state statutes that are

conceptually quite different from § 8-402.1. Our

research has disclosed only one reported appellate

opinion that has considered a preemption challenge

to a state statute similar to § 8-402.1. That court

concluded that the statute was not preempted.

90a

1. The Standard of Review

A trial court’s grant or denial of a motion for

summary judgment is governed by Md. Rule 2-501. A

grant of a motion for summary judgment is

appropriate when “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.” Rule 2-501(f). “The purpose of the

summary judgment procedure is not to try the case

or to decide the factual disputes, but to decide

whether there is an issue of fact, which is

sufficiently material to be tried.” Jones v. Mid-Atl.

Funding Co., 362 Md. 661, 675 (2001). “When ruling

on a motion for summary judgment, a court must

view the facts, including all inferences drawn

therefrom, in the light most favorable to the

opposing party.” Carter v. Aramark Sports & Entm’t

Servs., Inc., 153 Md. App. 210, 224 (2003).

Although we will reverse the judgment of the

circuit court, we agree with some of its analysis. On

the record before it, the circuit court did not err in

deciding that there was no dispute of material fact

as to whether Hosford was in possession of

marijuana on the day that his apartment was

inspected. We also agree with the court 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. However,

we part company with the circuit court on the issue

of preemption.

91a

2. Preemption

“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, 132 S. Ct. 2492, 2500 (2012). As a

result, there is the potential for conflict or crosspurposes served by co-existing federal and state

laws. Id. The Supremacy Clause 7 provides that

federal law is supreme over state law and any state

law that stands in conflict with the federal law is

preempted.

There are three widely recognized forms of

preemption: express, field, and conflict. Farina v.

Nokia Inc., 625 F.3d 97, 115 (3d Cir. 2010). Express

preemption occurs when Congress has explicitly

withdrawn “specified powers from the States by

enacting a statute containing an express preemption

provision.” Arizona, 132 S. Ct. at 2500-01. Field

preemption applies when “the federal interest is so

dominant that the federal system will be assumed to

preclude enforcement of state laws on the same

subject.” Farina, 625 F.3d at 115. Finally, conflict

preemption applies either: “(1) ‘where it is impossible

for a private party to comply with both state and

federal requirements,’ or (2) ‘where state law stands

7 Article VI, Clause 2 of the United States Constitution states

in pertinent part:

This Constitution, and the Laws 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.

92a

as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress.’” Id.

at 122 (quoting Fellner v. Tri-Union Seafoods,

L.L.C., 539 F.3d 237, 251 (3d Cir. 2008)).

The “ultimate touchstone” for determining

whether federal law preempts state law is

Congressional intent. Id. (quoting Medtronic, Inc., v.

Lohr, 518 U.S. 470, 485 (1996)). In order to

determine Congressional intent, courts start with

the “basic assumption that Congress did not intend

to displace state law.” Id. at 116 (quoting Maryland

v. Louisiana, 451 U.S. 725, 746 (1981)). “The

presumption against inferring preemption is

premised on federalism grounds and, therefore,

weighs most heavily where the particular regulatory

area is ‘traditionally the domain of state law.’” In re

Tribune Co. Fraudulent Conveyance Litig., 818 F.3d.

98, 110 (2d Cir. 2016) (quoting Hillman v. Maretta,

133 S. Ct. 1943, 1950 (2013)). In 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[.]” Hillman, 133 S.

Ct. at 1950 (2013) (quoting Hisquierdo v. Hisquierdo,

439 U.S. 572, 581 (1979)).

Agency regulations, with the force of federal

law, can also preempt conflicting state and local

laws. Wyeth v. Levine, 555 U.S. 555, 576 (2009).

However, in such instances, courts do not necessarily

accept the agency’s conclusions but instead

“perform[] [their] own conflict determination, relying

on the substance of state and federal law and not on

93a

agency proclamations of pre-emption.” Id. Federal

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

regulations. In these instances, courts have afforded

some weight to the agency’s explanation of its view,

but no weight to its conclusion; as the Supreme

Court explained in Wyeth, 555 U.S. at 576-77

(internal quotations and citations omitted; emphasis

in original):

In prior cases, we have given some

weight to an agency’s views about the

impact of tort law on federal objectives

when ‘the subject matter is technical

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

94a

law’s impact on the federal scheme

depends

its

thoroughness,

consistency, and persuasiveness.

The parties agree, as do we, that the concepts

of express and field preemption are not applicable to

this case. Turning to the doctrine of conflict

preemption, Foghorn does not assert that it is

impossible to comply with both the state law and the

federal law.

Moreover, landlord-tenant law is

traditionally within the domain of state law, see, e.g.,

Perry v. Hous. Auth. 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.”). As such, the

disputed portions of RP § 8-402.1 are preempted only

if they cause “‘major damage’ to ‘clear and

substantial’’ federal interests” embedded in the

federal law. This requires us to first identify the

federal interests at issue and then to assess the

degree to which a trial court’s consideration of

equitable and similar factors interferes with the

federal government’s ability to realize those

interests. We will begin by considering the state and

federal statute and regulations at issue.

3. The State and Federal Laws

(A) RP § 8-402.1

RP § 8-402.1 provides a remedy to allow a

landlord to obtain an order evicting a tenant for

breaching a term of the lease other than a term

calling for the payment of rent. Brown v. Housing

95a

Opportunities Comm’n, 350 Md. 570, 584 (1998). 8 In

the present case, we are concerned with subsection

(b)(1) of the statute, which states in pertinent part

(emphasis added):

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 . . . .

The meaning of the italicized language was

the focus of the Court’s analysis in Brown. In tracing

the evolution of § 8-402.1 from its common law roots,

the Court noted that, prior to the enactment of the

statute, one remedy for landlords seeking possession

was a proceeding for ejectment, and that a tenant

had the right to raise equitable defenses in such

actions. Id. 582–83. As to the “breach was

substantial and warrants eviction” language, the

Court concluded:

The 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

Section 8-402.1 is one of a trio of statutes enacted by the

General Assembly to provide simplified court procedures by

which landlords can recover possession of leased premises. The

other two are RP § 8-401, which authorizes courts to order the

eviction of tenants who have failed to pay rent and RP § 8-402,

which established a similar remedy for tenants holding over.

The historical and conceptual underpinnings of § 8-402.1 are

discussed in detail in Brown. 350 Md. at 575–583.

96a

those [equitable] considerations, even if

it did, to some extent, vest in the

District Court a more general discretion

to preclude a forfeiture than previously

had been exercised by the equity courts.

The court is entitled, and indeed

directed, to weigh all of the relevant

factors before declaring a forfeiture and

evicting the tenant, including the actual

loss or damage caused by the violation

at issue, the likelihood of future

violations, and the existence of effective

alternative remedies for past or existing

violations.

Id. at 584 (emphasis added).

Thus, Brown held that the “warrants eviction”

requirement authorizes a court to exercise its

discretion before ordering eviction in a § 8-402.1

action. Id.

(B) 42 U.S.C. § 1437f and 24 C.F.R. § 5.858

The federal statute in question is 42 U.S.C.

§ 1437f, which pertains to Section 8 project-based

programs (such as Ruscombe Gardens). Section

1437f(d)(1)(B)(iii) requires that tenant leases in such

projects provide that engaging in drug-related

criminal activity is grounds for termination of the

lease:

Contracts to make assistance payments

entered into by a public housing agency

with an owner of existing housing units

97a

shall provide (with respect to any unit)

that—

****

(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[.]

24 C.F.R. § 5.585 implements 42 U.S.C. §

1437f(d)(1)(B)(iii) as it relates to drug-related

criminal activity. The regulation states in pertinent

part:

The lease must provide that drugrelated 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 [i.e.,

the landlord] to terminate the 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

98a

right to peaceful enjoyment of the

premises by other residents. 9

In Department of Housing and Urban

Development v. Rucker, 535 U.S. 125, 129 (2002), the

Court analyzed a substantively identical statute, 42

U.S.C. § 1437d(l)(6), 10 and concluded that the

statute:

entrusts [the] decision [to evict] 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,

the extent to which the leaseholder has

. . . taken all reasonable steps to

9 24 C.F.R. § 5.580 provides that § 5.585 applies to all federally-

subsidized housing programs except for those specifically

excepted in § 5.580. Ruscombe Gardens received projectedbased funding from HUD and such projects are not excepted.

42 U.S.C. § 1437d(l)(6) is the equivalent of 42 U.S.C.

§ 1437f(d)(1)(B)(iii) save that it applies to public housing

program rather than project-based assistance projects such as

Ruscombe Gardens. Specifically, 42 U.S.C. § 1437d(l)(6) states:

Each public housing agency shall utilize leases which—

....

provide that any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises by other

tenants or any drug-related criminal activity on or off such

premises, engaged in by a public housing tenant, any member

of the tenant's household, or any guest or other person under

the tenant's control, shall be cause for termination of tenancy[.]

99a

prevent

action.

mitigate

the

offending

Id. at 134 (quotation marks and citations omitted).

The issue, however, in Rucker was not

preemption, but rather one of statutory construction,

specifically, whether § 1437d authorized HUD to

enact a regulation permitting landlords to evict

“innocent tenants,” that is, tenants whose family

members or guests used illicit drugs in and about

the apartment complex without the tenant’s

knowledge. Id. at 128. The Court answered the

question in the affirmative. Id. at 130.

Rucker certainly stands for the proposition

that permitting landlords discretion in deciding

whether to evict tenants for illicit drug activity is an

integral part of what is indisputably a “clear and

substantial federal interest”—protecting residents of

federally-supported housing from drug-related

criminal activity. Rucker does not address in any

fashion whether the exercise of discretion by state

courts in eviction actions involving federallysubsidized housing inflicts “major damage” to that

interest.

To answer this question, both parties cite to a

plethora of materials, including the federal

regulation in question, 24 C.F.R. § 5.858, an

interpretive document issued by HUD, namely,

Handbook 4350.3—Occupancy Requirements of

Subsidized

Multifamily

Housing

Programs

(“Handbook 4350.3”), which includes guidance on the

100a

application of C.F.R. § 5.858; 11 and case law in

support of their respective positions on this issue.

We will begin with some background.

4. A Guide Through the Labyrinth

(A) 42 U.S.C. § 1437f

Federally-subsidized housing first came into

existence with the passage of the Housing Act of

1937 (the “Housing Act”). The Housing Act was

passed in order to:

[R]emedy 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.

S. 1685, 75th Cong., 50 STAT. 888, 888 (1937).

The Department of Housing and Urban

Development was established in 1965. Since then,

HUD has developed several programs to provide

assistance to low-income families in order to

facilitate their ability to afford safe housing through

the Housing Act’s authorization.

See George

Weidenfeller et al., Navigating HUD Programs, A

HUD has several handbooks available online that were

developed in order to provide guidance for different HUD

Offices and programs. Handbook 4350.3 is one of several

handbooks available on HUD’s housing programs, and can be

found at https://perma.cc/96EY-DHFW.

101a

Practitioners’ Guide to the Labyrinth xxix (2012).

Each program is governed by its own, more or less

discrete, body of law. 12 Ruscombe Gardens offers

federally-subsidized housing to tenants through the

Section 8 project-based program; specifically under

the Section 8 State Housing Agency program,

governed by 24 C.F.R. § 883 et seq.

Section 8 programs were established as part of

the Housing and Community Development Act of

1974 (the “HCDA”). S. 3066, 93th Cong., 88 STAT.

633 (1974). Section 8 of the HCDA created a program

to subsidize private rental housing. Navigating HUD

Programs at 319. Section 8 is divided into two major

categories: the tenant-based program and the

project-based program. In the tenant-based program,

HUD pays the difference between a contract rent

and a specified percentage of a tenant’s gross or

adjusted income. In project-based assistance

programs, like the one that subsidizes Ruscombe

Gardens, HUD provides assistance to the housing

projects rather than to individual households. Id. at

320.

The Housing Act was amended to include the

current version of 42 U.S.C. § 1437d when Congress

enacted the Anti-Drug Abuse Act of 1988 (the

“ADAA”). The subchapter pertaining to public

housing projects, entitled the Public Housing Drug

12 The HUD regulations for other programs contain provisions

similar to 24 C.F.R. § 5.858’s requirement that leases contain a

provision providing grounds to evict for drug-related criminal

activity. See, e.g., 24 C.F.R. § 882.511; 24 C.F.R. § 982.553; 24

C.F.R. § 966.4.

102a

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.

H.R. 5210, 100th Cong., 102 STAT. 4295, 4301

(1988).

103a

Accordingly, Congress revised

§ 1437d to include the following

provision:

U.S.C.

Each public housing agency shall utilize

leases which—

...

provide that any criminal activity that

threatens the health, safety, or right to

peaceful enjoyment of the premises by

other tenants or any drug-related

criminal activity on or off such

premises, engaged in by a public

housing tenant, any member of the

tenant’s household, or any guest or

other person under the tenant’s control,

shall be cause for termination of

tenancy;

42 U.S.C. § 1437d(l)(6); see also 102 STAT. at 4300.

The ADAA addressed drug-related criminal

activity as grounds for eviction only in the context of

public housing programs. In 1998, Congress passed

the Quality Housing and Work Responsibility Act

(the “QHWRA”), which extended this statutory

requirement to Section 8 programs like Ruscombe

Gardens.

The QHWRA was the most comprehensive

reform of the Housing Act since the HCDA.

Navigating HUD Programs at 286. Subtitle F of that

statute addressed safety and security problems in

public and assisted housing. The current version of

the statute governing Foghorn’s lease—42 U.S.C.

104a

§ 1437f(d)(1)(B)(iii)—was contained in § 577 of the

QHWRA.

The Congressional findings for the QHWRA

did not explain why it chose to expand the ADAA to

Section 8 programs, but did explain that one of the

goals of the Act was to provide public housing

authorities with greater discretion over federallysubsidized housing. See H.R. 4194, 105th Cong., 112

STAT. 2518, 2521 (1998) (“[T]he purpose served by

the [QHWRA] was to: . . . deregulat[e] and

decontrol[] public housing agencies, thereby enabling

them to perform as property and asset managers.”)

(B) The Agency’s Views of Preemption

Foghorn directs us to two sources which it

asserts demonstrate HUD’s intention 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. There

are some difficulties with Foghorn’s argument. First,

we note that, as we stated supra, even if Handbook

4350.3 or the preamble to the regulations expressed

HUD’s intent to preempt state law, the agency’s

views would only provide persuasive authority for

our conflict determination, and the persuasive

weight of that authority would depend on the

“thoroughness, consistency, and persuasiveness” of

HUD’s statements concerning preemption. See

Wyeth, 555 U.S. at 577. Second, neither Handbook

4350.3 nor the preamble to 24 C.F.R. § 5.850 et seq.

expresses an intent to preempt state laws such as

the disputed provisions of RP § 8-402.1.

105a

We begin with 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

CFR Part 246, Local Rent

Control, or by other action of the

United States.

Handbook 4350.3 at 8-16–17.

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, neither 42 U.S.C. § 1437f nor

24 C.F.R. § 5.858 mentions the preemption of state

or local eviction procedures. This is problematic

(from Foghorn’s perspective), because HUD’s

106a

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’

preempted in its entirety by the

promulgation of these regulations. The

regulation of rents for projects coming

within the scope of ‘Subpart D—HUD–

Owned Projects’ rests within the

exclusive jurisdiction of the Department.

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

107a

laws concerning eviction procedures. The only other

“action of the United States” to which Foghorn

directs our attention is a passage from the preamble

to HUD’s adoption of 24 C.F.R. § 5.850 et seq.

The preamble is an introductory statement

prepared by HUD’s Office of the Secretary (the

“Office”), 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. 13 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 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

13 More information on the federal rule-making process can be

found in A Guide to the Rulemaking Process, OFFICE OF THE

FEDERAL REGISTER,, available at https://perma.cc/SKB85JVM.

108a

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:

[T]he final rule allows the necessary

flexibility

for

[public

housing

authorities] with respect to public

housing and owners with respect to

project-based assistance and tenantbased assistance. This is consistent

with the cited committee report

language, which in any event has not

been reflected in any statute. The

committee report language for both the

House and Senate versions of the

[QHWRA] emphasizes efforts to make

assisted housing safer for residents,

which is consistent with the final rule.

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

109a

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 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,

i.e., the QHWRA, and the statute does not provide

courts with authority to exercise discretion over

eviction actions for tenants of federally-subsidized

housing. The Office’s conclusion is not surprising

because landlord-tenant law has traditionally been

110a

considered a matter of state law. 14 There is certainly

nothing in § 1437f, or anywhere else in either the

QHWRA, or elsewhere in the Housing Act or any of

its numerous amendments, that suggests that

Congress intended to give HUD the authority to put

into effect a nationwide landlord-tenant code for

federally-supported housing.

The Office further explained that, as far as the

HUD regulations were 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 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. This conclusion

reflects the Supreme Court’s interpretation of 42

U.S.C. § 1437d, which pertains to public housing

authorities, as opposed to Section 8 programs. See

Rucker. 535 U.S. at 134 (The Housing Act “entrusts

14 See Perry v. Hous. Auth. of City of Charleston, 664 F.2d at

1216 (“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.”); Forest City

Residential Mgmt., Inc. ex rel. Plymouth Square Ltd. Dividend

Hous. 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.”)

111a

[the] decision [to evict] to the local public housing

authorities[.]”). 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.

Our analysis of the statute, the implementing

regulations, and the HUD guidelines, lead us to two

conclusions:

First, a landlord does not have to consider

equitable factors in determining whether to pursue

eviction for drug-related conduct. A state law that

would require landlords to do so would be

preempted.

Second, 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.

To be sure, had it wished to do so, Congress

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