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COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
94-2983
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN ex rel. Caryl Sprague,
Petitioner-Respondent,
v.
CITY OF MADISON and
CITY OF MADISON EQUAL
OPPORTUNITIES COMMISSION,
Respondents-Respondents,
ANN HACKLANDER-READY,
Respondent-Appellant,
MAUREEN ROWE,
Respondent.
APPEAL from an order of
the circuit court for Dane County:
SARAH B. O'BRIEN, Judge. Affirmed
in part; reversed in part.
Before Dykman, P.J.,
Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
SUNDBY,
J. Ann Hacklander-Ready and Maureen Rowe appeal from a
decision affirming the Madison Equal Opportunity Commission's (MEOC) Decision
and Order which found that they refused to rent housing to Carol Sprague as
their housemate because of her sexual orientation, in violation of
§ 3.23(4)(a) of the Madison General Ordinances (MGO). MEOC awarded Sprague $3,000 in damages for
emotional distress, and $300 for the loss of a security deposit on another
apartment. We conclude that the trial
court correctly found that § 3.23, MGO, unambiguously applied to
housemates at the time this action arose.
We therefore affirm MEOC's award of damages for Sprague's loss of her
security deposit. However, we reverse
the award for emotional distress because we conclude that MEOC had no power to
award such damages. We further affirm
MEOC's award of costs and reasonable attorney's fees to Sprague. Although Sprague is not entitled to damages
for emotional distress, she is the prevailing party because she established
that appellants discriminated against her.
BACKGROUND
At all times relevant to
this action Hacklander-Ready leased a four-bedroom house. She had the owner's permission to allow
others to live with her and share in the payment of rent. In the fall of 1988, Maureen Rowe began
living with Hacklander-Ready and paying rent.
In April 1989 they advertised for housemates to replace two women who
were moving out. They chose Sprague
from among numerous applicants. They
knew her sexual orientation when they extended their offer to her. Sprague accepted their offer and made a rent
deposit on May 4, 1989. However, the
following day Hacklander-Ready informed Sprague that they were withdrawing
their offer because they were not comfortable living with a person of her
sexual orientation.
Sprague filed a
complaint with MEOC alleging that appellants discriminated against her on the
basis of sexual orientation, contrary to § 3.23(4)(a), MGO. The administrative law judge agreed and
awarded Sprague $2,000 for emotional distress, $1,000 punitive damages, and
$300 for the security deposit she lost trying to secure another apartment,
together with costs and reasonable attorney's fees. Appellants appealed to MEOC.
On July 10, 1992, MEOC vacated the hearing examiner's Findings of Fact
and Conclusions of Law and Order on the grounds that the Madison City Council
(City Council) intended to exempt roommate arrangements from the
ordinance. MEOC did not state its reasons
for this conclusion, nor did it address the legal arguments the parties raised.
Sprague petitioned the
circuit court for a writ of certiorari to review MEOC's decision. She argued that the ordinance unambiguously
applied to housemate arrangements. On
August 19, 1993, the trial court reversed MEOC's order. The court found that the language of the
ordinance was "crystal clear" and that MEOC had jurisdiction to
provide Sprague with relief. The trial
court retained jurisdiction and remanded the matter to MEOC. On February 10, 1994, MEOC issued a Decision
and Order on Remand which affirmed, in part, the decision of the hearing
examiner. MEOC reversed the hearing
examiner's award of punitive damages but increased the award of damages for
Sprague's emotional distress to $3,000.
The total award remained $3,300.
MEOC awarded Sprague costs and reasonable attorney's fees.
APPLICABLE ORDINANCES
At the time of the
events in issue, § 3.23, MGO, provided:
(1) Declaration of Policy. The practice of providing equal
opportunities in housing ... without regard to ... sexual orientation ... is a
desirable goal of the City of Madison and a matter of legitimate concern to its
government ... In order that the peace, freedom, safety and general welfare of
all inhabitants of the City may be protected and ensured, it is hereby declared
to be the public policy of the City of Madison to foster and enforce to the
fullest extent the protection by law of the rights of all its inhabitants to
equal opportunity to ... housing....
(2)(b) "Housing" shall mean any
building, structure, or part thereof which is used or occupied, or is intended,
arranged or designed to be used or occupied, as a residence, home or place of
habitation of one or more human beings, including a mobile home as defined in
Section 66.058 of the Wisconsin Statutes and a trailer as defined in Section
9.23 of the Madison General Ordinances....
Such definition of "housing" is qualified by the exceptions
contained in Section 3.23(4)(a).
(4)
It shall be an unfair discrimination practice and unlawful and hereby
prohibited: (a) For any person having
the right of ownership or possession or the right of transfer, sale, rental or
lease of any housing, or the agent of any such person, to refuse to transfer,
sell, rent or lease, or otherwise to deny or withhold from any person such
housing because of ... sexual orientation....
(b) Nothing in this ordinance shall prevent any person from renting or
leasing housing, or any part thereof, to solely male or female persons if such
housing or part thereof is rented with the understanding that toilet and bath
facilities must be shared with the landlord or with other tenants.
DECISION
On certiorari we review
the decision of the administrative agency.
State ex rel. Thompson v. Nash, 27 Wis.2d 183, 194, 133
N.W.2d 769, 775 (1965). Our review is
limited to (1) whether MEOC kept within its jurisdiction, (2) whether it acted
according to the law, (3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its judgment, and (4) whether the
evidence was such that MEOC might reasonably have made the order or
determination in question. Marris
v. City of Cedarburg, 176 Wis.2d 14, 24, 498 N.W.2d 842, 846 (1993).
Sprague claims that
§ 3.23, MGO, was intended to apply to housemate arrangements.[1] The interpretation of a statute or ordinance
is a question of law which we decide without deference to the trial court. Id. at 32, 498 N.W.2d at
850. Where a statute is unambiguous
there is no need to go beyond the clear language of the statute. County of Sauk v. Trager, 113
Wis.2d 48, 55, 334 N.W.2d 272, 275 (Ct. App. 1983), aff'd 118 Wis.2d
204, 346 N.W.2d 756 (1984).
Section 3.23(4), MGO,
unambiguously prohibits any person having right of rental to refuse to rent to
any person because of the person's sexual orientation. Hacklander-Ready concedes that she held the
lease to the house and that she had the right to rent the property to
others. Further, she and Rowe admit
that the sole reason they withdrew their offer was Sprague's sexual orientation. Finally, the room that appellants sought to
rent falls within the definition of housing under § 3.23(2)(b), MGO, as a
part of a building intended as a place of habitation for one or more human
beings.
While appellants
correctly argue that a statute is ambiguous if it may be construed in different
ways by reasonably well-informed persons, we fail to see any reasonable
interpretation that would make § 3.23, MGO, inapplicable in this
case. See La Crosse
Footwear v. LIRC, 147 Wis.2d 419, 423, 434 N.W.2d 392, 394 (Ct. App.
1988). Appellants also correctly note
that a court may resort to construction if the literal meaning of a statute
produces an absurd or unreasonable result.
NCR Corp. v. Department of Revenue, 112 Wis.2d 406, 411,
332 N.W.2d 865, 868 (Ct. App. 1983).
However, applying § 3.23(4) to the rental of a room within a house
with shared common areas is not unreasonable or absurd. Because we find that the ordinance clearly
and unambiguously applies to the subleasing of housing by a person having the
right of rental, our inquiry in this respect is at an end.
Appellants argue that to
apply the ordinance to the lease of housing by a tenant to a housemate makes
§ 3.24(4)(a), MGO, unconstitutional in its application. The trial court properly declined to
consider this argument because appellants failed to notify the attorney general
of their challenge, as required by § 806.04(11), Stats.[2] However, appellants notified the attorney
general subsequent to the trial court's decision.[3] This notice cured the defect. See In re Estate of Fessler,
100 Wis.2d 437, 444, 302 N.W.2d 414, 418 (1981).
Appellants cite many
cases which they argue support their constitutional challenge: NAACP v. Alabama, 357 U.S. 449
(1958): Griswold v. Connecticut,
381 U.S. 479 (1965); City of Ladue v. Gilleo, 512 U.S. 43 (1994);
Payton v. New York, 445 U.S. 573 (1980); Moore v. City of East
Cleveland, 431 U.S. 494 (1977); City of Wauwatosa v. King,
49 Wis.2d 398, 182 N.W.2d 530 (1971).
However, those cases deal either with the right to privacy in the home
or family or the right to engage in first amendment activity free of
unwarranted governmental intrusion.
Appellants gave up their unqualified right to such constitutional
protection when they rented housing for profit. The restrictions placed by the Madison City Council on persons
who rent housing for profit are not unreasonable and do not encroach upon
appellant's constitutional protections.
We therefore reject appellants' challenge to the constitutionality of
§ 3.24, MGO, as applied.
Appellants next argue
that MEOC exceeded its jurisdiction when it awarded Sprague damages for emotional
distress. MEOC relies on
§ 3.23(9)(c)2.b, MGO, as the source of its authority to make such an
award. At the time this action arose,
§ 3.23(9)(c)2.b, MGO, stated that when MEOC determines that discrimination
has occurred "it shall order such action by the Respondent as will redress
the injury done to the Complainant in violation of this ordinance ... and
generally effectuate the purpose of this ordinance." Whether this language empowered MEOC to
award damages is again a question of law which we decide without deference to
the trial court's decision. Marris,
176 Wis.2d at 24, 498 N.W.2d at 846. In
construing a statute or ordinance, we seek the intent of the legislative
body. Watkins v. LIRC,
117 Wis.2d 753, 761, 345 N.W.2d 482, 486 (1984).
As remedial legislation,
§ 3.24, MGO, must be liberally construed to accomplish its purpose. MEOC has awarded damages for emotional
distress in two previous cases;[4]
however, this brief history is not sufficient to persuade us to defer to the
agency's interpretation without our own careful examination. We need not give deference to an
administrative agency's interpretation of a statue or ordinance unless the
agency's interpretation has been long-continued, substantially uniform and
without challenge by governmental authorities and courts. Local No. 695 v. LIRC, 154
Wis.2d 75, 83, 452 N.W.2d 368, 372 (1990).
Section 3.23, MGO, as it
read when this dispute arose, did not explicitly authorize MEOC to award
compensatory or punitive damages.
Moreover, when this action arose not even the State's Fair Housing Law
allowed the administrative agency to award damages in an administrative
proceeding. Such damages could be
awarded only in a civil action. Section
101.22(7), Stats.[5] Further, when this action arose,
§ 66.432(2), Stats., which
enables municipalities to enact ordinances prohibiting discrimination in the
rental of housing, only authorized them to impose forfeitures.[6] Without such statutory authority, it is
extremely unlikely that the City Council intended to empower MEOC to award
compensatory damages. Finally, the
plain language of § 3.23, MGO, that the agency "shall order such
action by the Respondent as will redress the injury done to the Complainant ...
and generally effectuate the purpose of this ordinance," is far more
consistent with the imposition of forfeitures and equitable relief. We also note that the City Council has now
amended § 3.23, MGO, to explicitly grant MEOC authority to award economic
and non-economic damages.
Section 3.23(9)(c)5b, MGO.
That the City Council added this language after this action was begun is
strong evidence that the Council did not consider that the former language of
§ 3.23(4) empowered MEOC to award compensatory damages. See Sutherland, Stat. Constr. § 48.01 (5th
Ed.). We therefore hold that MEOC
exceeded its jurisdiction and acted contrary to law when it awarded Sprague
damages for emotional distress.[7]
Appellants also argue
that the $300 award for the lost security deposit should be vacated because it
reflects MEOC's will and not its judgment.
However, we find that MEOC's determination that appellants' illegal
refusal to rent to Sprague was the proximate cause of the lost security deposit
is reasonably supported by the evidence and is an appropriate restitutionary remedy.
Finally, appellants
contend that Sprague's inquiries as to whether the household would respect her
sexual orientation constituted a waiver of her rights under § 3.23,
MGO. To hold that a prudent inquiry
about the environment in which one will live waived the protections afforded by
§ 3.23, MGO, would be an unreasonable construction of the ordinance. We therefore hold that by her inquiries
Sprague did not waive her rights under the ordinance.
Because we hold that in
enacting § 3.23(9)(c)2.b, MGO, the Common Council did not authorize MEOC to
award damages for emotional distress, we do not decide whether the award
violated appellants' right to a jury trial.
Further, we need not consider the broader question whether
municipalities generally have the power to authorize administrative agencies to
award compensatory damages.
By the Court.—Order
affirmed in part and reversed in part.
Not recommended for
publication in the official reports.
[1] In September 1989, subsequent to the commencement of this action, the Madison City Council amended the Equal Opportunities Ordinance by adding § 3.23(c), MGO, which states, "Nothing in this ordinance shall affect any person's decision to share occupancy of a lodging room, apartment or dwelling unit with another person or persons."
[2] Section 806.04(11), Stats., provides: "In any proceeding which involves the validity of a municipal ordinance or franchise ... if any ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard."
[4] Nelson v. Weight Loss Clinic of America, case No. 20684 (9/29/89), and Ossia v. Rush, case No. 1377 (6/7/88).
[5] Section 101.22, Stats., was amended in 1993 to permit a hearing examiner to award economic and non-economic damages, and was renumbered to § 106.04 by 1995 Act 27, § 3687.
[6] Even the present version of § 66.432(2), Stats., does not specifically authorize a municipal agency to award damages to redress housing discrimination. Rather it provides for either party to elect to remove the action to the circuit court after a finding has been made that there is reasonable cause to believe that a violation has occurred.