Cease v. Housing Authority of Indiana County – Cmwlth. Court – February 19, 2021 – reported decision – (2-1)
Petition for allowance of appeal denied Sept. 14, 2021
https://www.pacourts.us/assets/opinions/Supreme/out/74WAL2021%20-%20104893193146422235.pdf?cb=1
Held: Housing Authority and trial court erred in denying Sec. 8 Housing Choice Voucher application of disabled veteran with valid permit under state law to “obtain and use medical marijuana to treat her conditions.” The denial was based solely on her use of that drug, which remains an illegal substance under federal law.
The court remanded the matter to the Housing Authority to do what federal law, the QHWRA, 42 USC sec. 13661, “mandates and establish fair and reasonable standards for determining in what circumstances admission to Section 8 housing is prohibited for an applicant who is legally using medical marijuana under state law, and to apply those standards with respect to the applicant’s individual circumstances when determining her eligibility for Section 8.”
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From the opinion:
Federal law does not outright require barring an application based on an applicant’s use of a controlled substance, but rather requires that a housing authority “shall establish standards” in such circumstances, 42 USC sec. 13661 (b)(1)(A). [T] here is a difference between “shall establish standards that prohibit admission” and “shall prohibit admission.” Otherwise, the term “establish standards” is entirely meaningless.” Compare the provision concerning sex offenders, which states that a housing authority “shall prohibit admission” of such an offender.
In other words, for purposes of Section 13661(b)(1)(A), the Authority must establish standards for determining when and on what basis admission is prohibited for a Section 8 housing applicant who the Authority determines is illegally using a controlled substance. See Nation v. Trump, 818 F. App’x 678, 679-80 (9th Cir. 2020) (“QHWRA requires that owners of federally-assisted housing establish certain occupancy standards pertaining to illegal drug use for residents. See generally 42 U.S.C. §§ 13661-62.”).
Such standards must take into account factors such as the nature of the substance, i.e., whether it is clearly unlawful or in an unclear legal state such as that involved here; the reason for such use; whether it is being used in accordance with legal requirements; other factors concerning the applicant’s background, including behavior during any prior residence in federally subsidized housing; and the presence or absence of any prior criminal record. The different conclusion by a lower federal court in Michigan is not binding here.
The applicant “possesses a valid Pennsylvania Medical Marijuana Identification Card authorizing her to legally obtain and use medical marijuana under medical supervision, and the Authority does not dispute that she has a valid medical basis for her use and that it is properly prescribed and supervised.
Consequently, we find the term “illegally using a controlled substance” to be ambiguous here where her use is prohibited by the federal government but permitted under state law. Criminal law is primarily a matter for the states to determine within their own jurisdictions. “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). As the Pennsylvania Supreme Court recently observed:
[T]he core principle of federalism recogniz[es] dual sovereignty between the tiers of government.” See United States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990) (“The states and the national government are distinct political communities, drawing their separate sovereign power from different sources, each from the organic law that established it. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses.”). In enacting the [Pennsylvania Medical Marijuana Act], the Pennsylvania Legislature proceeded pursuant to its independent power to define state criminal law and promote the health and welfare of the citizenry. Gass v. 52nd Jud. Dist., 232 A.3d 706, 714 (Pa. 2020). Consequently, “while possession and use of marijuana remains illegal under federal law even for medical purposes, . . . the federal [CSA] does not (and could not) require states to enforce it.” Id. at 714.
Dissent – McCullough
The Majority goes to great lengths to explain why Congress’s use of the phrase “shall establish standards that prohibit” in section 13361 of the federal Quality Housing and Work Responsibility Act (QHWRA), means a Public Housing Authority (PHA) has “flexibility” to decide whether to admit an illegal drug user (as defined in the federal Controlled Substance Act (CSA)) into a Section 8 housing program. By avoiding the rules of statutory interpretation, the Majority assigns to the phrase “shall establish standards that prohibit” a meaning that Congress plainly did not intend.
The Majority also disregards some very basic constitutional and jurisprudential concepts to arrive at the desired conclusion that Mary Cease (Cease), a user of medical marijuana, is not “illegally using a controlled substance” under the QHWRA. The fact that Pennsylvania’s Medical Marijuana Act (MMA) legalizes the use of medical marijuana in limited situations is immaterial to the disposition of this case. The CSA (which illegalizes medical marijuana as a Schedule I drug) applies here because the QHWRA is a federal statute.
I disagree with the Majority’s interpretation of section 13661 of the QHWRA. To me, it is abundantly clear that PHAs have no discretion to admit persons who engage in the illegal use of drugs, as defined in the governing federal law. Rather, PHAs are required to deny admission to Section 8 housing if the PHA determines that the applicant or any household member is currently engaging in illegal use of drugs.
The Majority’s position simply cannot be reconciled with the Supremacy Clause of the United States Constitution, which dictates that the federal law prevails over state law. The Supremacy Clause prevents this Court from applying the Pennsylvania MMA to discern the meaning of “illegally using a controlled substance.”
