Drug Eviction Deemed Reviewable by State Court

Facts: In 2014, the owner of a federally subsidized apartment building in Baltimore hired an extermination company to treat the site for a bedbug infestation. Two exterminators entered a disabled resident’s apartment and saw what looked to them like a marijuana plant growing in his bathtub. They reported this to the building’s management office. Someone in the office contacted the police, and an officer responded. The officer concluded that the plant in the bathtub was marijuana, confiscated it, and issued the resident a criminal citation for possession of marijuana. The plant was tested by a police chemist, who concluded that the plant was marijuana. The resident was subsequently charged in the District Court for Baltimore City with possession of less than 10 grams of marijuana, but the charge was later dismissed.

In July 2014, the owner started an eviction action against the resident in the district court, claiming that the resident had breached the term of his lease prohibiting drug-related criminal activity. The owner asked for a judgment without a trial, arguing that: (1) the resident had marijuana in his apartment; (2) possession of marijuana was illegal under Maryland law at the time of the resident’s arrest, and also illegal under federal law, and thus constituted drug-related criminal activity in violation of the lease; and (3) because the site was a federally subsidized housing project, federal law gives the owner discretion to decide whether a tenant should be evicted for drug-related criminal activity. The owner argued that these same federal laws preempt the state law’s requirement that a court can order eviction only if the breach is substantial and warrants eviction.

The resident argued that the case should go to trial because if he did possess marijuana, it wasn’t a criminal activity, and thus not a breach of the lease; and even if the action did breach the lease, the court must still determine whether the breach was “substantial” and “warrants eviction” pursuant to state law. The resident 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.

The circuit court granted the owner’s request for a judgment without a trial in its favor. 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 the apartment when the exterminators entered it. Second, the court wasn’t persuaded by the resident’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 became effective on Oct. 1, 2014—that is, after the marijuana plant was discovered in the resident’s apartment.

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.” The resident appealed.

Ruling: A Maryland Court of Special Appeals reversed the lower court’s ruling and sent the case back for a trial.

Reasoning: According to the court, Maryland state law grants to courts the authority to consider equitable and similar factors before granting an owner’s request for an eviction. In order for this portion of state law to be superseded by federal law, the exercise of such authority must cause “major damage” to “clear and substantial federal interests.”

The court identified two clear and substantial federal interests raised by the mandatory criminal lease provisions in federal low-income housing laws: (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 who threaten the former goal. The court believed that the courts can strike the proper balance between federal policy and state law by presuming that drug-related criminal activity is a breach that ordinarily warrants eviction under state law, but that this presumption may be rebutted by equitable factors that arise in a given case. The court ruled that this approach gives proper weight both to the exercise of the owner’s discretion accorded under federal law to seek eviction, and to Maryland’s public policy that tenants—especially impoverished and disabled ones—not be evicted automatically when good reasons are presented and credited to show that such eviction would be not only unduly harsh but not necessary to accommodate the federal objectives.

• Hosford v. Chateau Foghorn LP, September 2016