County of Dane v. Norman

497 N.W.2d 714, 174 Wis. 2d 683, 1993 Wisc. LEXIS 359

• Court: Wisconsin Supreme Court
• Decided: April 13, 1993
• Docket: 91-0486
• Status: Published

Opinions

STEINMETZ, J.

The issue in this case is whether Dwight Norman discriminated against potential tenants on the basis of "marital status," contrary to Chapter 31 of the Dane county ordinances, when he refused to rent a three-bedroom duplex to two groups of potential tenants, on separate occasions, on the ground that his policy as a landlord is not to rent to groups of unrelated individuals seeking to live together. One group seeking to rent Norman's property consisted of three single women, and the other group consisted of two single women and one of the women's two children.

We hold that Norman's policy does not violate Chapter 31 of the Dane county ordinances which proscribes discrimination based on "marital status." Norman refused to rent to the prospective tenants in this case because they intended to live together. Living together is "conduct" not "status."

This action was commenced pursuant to a summons and complaint filed on February 26,1990. The complaint alleged that Norman violated Dane county's fair housing ordinance by refusing to rent a three-bedroom duplex to (a) three single women and (b) two single women and the two children of one of the women. The complaint alleged that the refusal was impermissibly based on the "marital status" of the prospective tenants.

The Dane county circuit court, Judge Richard J. Callaway, issued a decision and order denying Dane county's motion for summary judgment and granting Norman's cross motion for summary judgment. The court found no violation of Dane county's fair housing ordinance. The court of appeals reversed the circuit court judgment, concluding that Norman's motion for summary judgment dismissing the complaint should have been denied and that Dane county's motion for summary judgment should have been granted. County of Dane v. Norman, 168 Wis. 2d 675, 484 N.W.2d 367 (Ct. App. 1992).

The standard of review for summary judgment motions is set forth in Bell v. County of Milwaukee, 134 Wis. 2d 25, 30, 396 N.W.2d 328 (1986):

Upon review of a summary judgment decision, this court must apply the standards set forth in 802.08(2), Stats. ... in the same manner as the trial court. Kremers-Urban Co. v. American Employers Ins., 119 Wis. 2d 722, 733, 351 N.W.2d 156 (1984). Since there is no disagreement as to issues of fact, this court must determine whether the . . . moving parties were entitled to judgment as a matter of law. Section 802.08(2), Stats. This court decides questions of law independently, without deference to the decision of the trial court and the court of appeals. Ball v. District No. 4 Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984). (Footnote omitted.)

In May, 1989, Joyce Anderton contacted Dwight Norman and asked if he had any three-bedroom duplexes available. He said some would be available in July and asked how large Anderton's family was. She said she was not married and would be living with two single women. Norman replied that he would rent to her individually but not to groups of unrelated individuals. He rejected an offer that one of the three be solely responsible for the rent.

In August, 1989, Norman showed one of his apartments to Deb Dana and her two children. Dana told Norman that she and the children would be living with another woman. He refused to rent to Dana on that basis.

It is undisputed that under Norman's policy individuals who are married, divorced, widowed, separated, or single are eligible to rent from him. Norman's policy is not to rent to groups of unrelated individuals. Neither Anderton nor Dana inquired about renting as single persons.

Chapter 31 of the Dane county ordinances, entitled "Fair Housing" prohibits "unlawful discrimination in housing" based on "marital status." Section 31.02, Dane county ordinances. More specifically, Chapter 31 provides as follows:

Section 31.02 INTENT. It is the intent of this chapter to render unlawful discrimination in housing. It is the declared policy of the County of Dane that all persons shall have an equal opportunity for housing regardless of . . . [the] marital status of the person maintaining a household . . ..

Section 31.03 DEFINITIONS. The following words and phrases have the meanings indicated unless the context requires otherwise:

(2) Discriminate and Discrimination mean to segregate, separate, exclude or treat any person or class of persons unequally because of... [the] marital status of the person maintaining the household . . ..

(5) Marital status means being married, divorced, widowed, separated, single or a cohabitant.

Section 31.10 DISCRIMINATION PROHIBITED. It shall be unlawful for any person to discriminate:

(1) By refusing to sell, lease, finance or contract to construct housing or by refusing to discuss the terms thereof . . ..

As stated above, "marital status" under Dane county ordinance sec. 31.03(5) is defined as "being married, divorced, widowed, separated, single or a cohabitant." The term "status," is not specifically defined in Chapter 31 but means in its common and approved usage "state or condition." Black's Law Dictionary (6th ed. 1990). Thus, the Dane county ordinance prohibits discrimination based on the state or condition of being married, the state or condition of being single, and the like.

Dane county argues that the inclusion of the term "cohabitant"¹ in the definition of "marital status" indicates that the term "marital status" was intended to cover groups of unrelated individuals seeking to live together. As a result, Norman's rental policy violates Chapter 31. We reject this argument. Chapter 31 is invalid to the extent that it seeks to protect "cohabitants." Because Dane county's argument turns on an invalid provision, it is unpersuasive.

Sections 31.02, 31.03 and 31.10, Dane county ordinances, were passed pursuant to the enabling authority contained in sec. 66.432(2), Stats. The authority granted to municipalities through enabling legislation like sec. 66.432 is not unlimited. " [A] municipality may not pass ordinances 'which infringe the spirit of a state law or are repugnant to the general policy of the state.' " Anchor Savings & Loan Ass'n v. Madison EOC, 120 Wis. 2d 391, 397, 355 N.W.2d 234 (1984) (quoting Fox v. Racine, 225 Wis. 542, 545, 275 N.W. 513 (1937)); see also 5 Eugene McQuillin, The Law of Municipal Corporations sec. 15.21 (3rd ed. 1989). McQuillin elaborates on this rule as follows:

The rule requires at least substantial conformity, and under it an ordinance cannot prohibit what the public policy permits, or permit that which public policy forbids. Nor, under a general grant of power, can a municipal corporation adopt ordinances which infringe the spirit, or are repugnant to the policy, of the state as declared in its legislation. It follows that if the state has expressed through legislation a public policy with reference to a subject, a municipality cannot ordain an effect contrary to or in qualification of the public policy so established, unless there is a specific, positive, lawful grant of power by the state to the municipality to so ordain.

5 McQuillin, supra, sec. 15.21.

Chapter 31's requirement that landlords make available their rental units to "cohabitants" is inconsistent with the public policy of this state which seeks to promote the stability of marriage and family. As a result, it is outside the enabling authority of sec. 66.432(2), Stats., and invalid.

Chapters 765-768, Stats., clearly set forth Wisconsin's policy of encouraging and protecting marriage. The preamble of intent to those sections states as follows:

(2) INTENT. It is the intent of chs. 765 to 768 to promote the stability and best interests of marriage and the family. It is the intent of the legislature to recognize the valuable contributions of both spouses during the marriage and at termination of the marriage by dissolution or death. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state. The consequences of the marriage contract are more significant to society than those of other contracts, and the public interest must be taken into account always. The seriousness of marriage makes adequate premarital counseling and education for family living highly desirable and courses thereon are urged upon all persons contemplating marriage. The impairment or dissolution of the marriage relation generally results in injury to the public wholly apart from the effect upon the parties immediately concerned. Under the laws of this state, marriage is a legal relationship between 2 equal persons, a husband and wife, who owe to each other mutual responsibility and support. Each spouse has an equal obligation in accordance with his or her ability to contribute money or services or both which are necessary for the adequate support and maintenance of his or her minor children and of the other spouse. No spouse may be presumed primarily liable for support expenses under this subsection.

(3) CONSTRUCTION. Chapters 765 to 768 shall be liberally construed to effect the objectives of sub. (2).

Section 765.001(2), (3), Stats.; see also Phillips v. Wisconsin Personnel Commission, 167 Wis. 2d 205, 220, 482 (Ct. App. 1992) (the court of appeals noted that unmarried cohabitants do not receive the same statutory protections, i.e., a mutual duty of general support, as do spouses); Federated Elec. v. Kessler, 131 Wis. 2d 189, 214, 388 N.W.2d 553 (1986) (recognizing that an employer's prohibition against extramarital affairs among its employees conforms with the policy set forth in sec. 765.001(2)).

Norman's motivation for denying rental to the individuals in this case was triggered by their "conduct," not their "marital status." As explained above, "marital status" refers to the state or condition of being married, the state or condition of being single, and the like. "Conduct," on the other hand, is defined by Black's Law Dictionary (6th ed. 1990) to mean " [personal behavior, deportment; mode of action; [and] any positive or negative act." It is undisputed that Norman would have rented to any of the prospective tenants, regardless of their individual "marital status," if they had not intended to live together. Their living together is "conduct," not "status."

This court's conclusion that Norman's policy turns on "conduct" rather than "marital status" is consistent with Wisconsin decisions distinguishing between "status" and "conduct" in the context of employment discrimination.² In Kessler, 131 Wis. 2d at 214, we held that a workplace rule which prohibited employees from associating with married employees of the opposite sex outside of work-related matters did not constitute marital status discrimination in violation of a Madison employment discrimination ordinance. We reasoned, in part, that the rule was aimed at "conduct" rather than "marital status." The rule applied to both married and single employees. The triggering event was associating with a married coemployee. Id. at 207-09.

In City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 223 (Ct. App. 1984) the court upheld the discharge of a police officer trainee on the ground that the employer relied on the underlying conduct of the employee, racing on a public highway, rather than merely his status as a person with a record of arrest, which resulted from that conduct.

In Squires v. Labor & Industry Review Commission, 97 Wis. 2d 648, 652-53, 294 N.W.2d 48 (Ct. App. 1980) the court upheld the discharge of an alcoholic employee based not on his status as an alcoholic, but on his conduct in being unable to perform his duties.

Other courts have distinguished between status and conduct in housing discrimination cases. See McFadden v. Elma Country Club, 26 Wash. App. 195, 613 P.2d 146 (1980); Hudson View Properties v. Weiss, 450 N.E.2d 234 (1983).

We hold that Norman's policy does not violate Chapter 31 of the Dane county ordinances. Chapter 31 proscribes discrimination based on the state or condition of being married, the state or condition of being single, and the like. Norman refused to rent to the prospective tenants in this case because they intended to live together. Living together is "conduct" not "status".

By the Court. — The decision of the court of appeals is reversed.

1 Chapter 31 does not specifically define "cohabitant." Webster's Dictionary defines the term as follows: "to live together as husband and wife . . . without a legal marriage having been performed." Webster's Third New International Dictionary (1966).

2 Our conclusion is also consistent with the Wisconsin Department of Industry, Labor and Human Relations — Equal Rights Division's ("ERD") interpretation of the Wisconsin Fair Housing Law, sec. 101.22, Stats. The language in the state statute parallels the language in the Dane county ordinances at issue here. The ERD has consistently concluded that the state prohibition against marital status discrimination in housing does not protect groups of unrelated individuals seeking to live together. Rudolph v. Davis, ERD case No. 8450035 (June 10, 1984); Spencer v. Norman Construction Co., ERD case No. 8400026 (April 11, 1986); Anderton v. Norman, ERD case No. 8912680 (May 31, 1991); Critchley v. Norman Construction Co., ERD case No. 9001953 (September 7, 1990); Dennis v. Norman Construction Co., ERD case No. 9001954 (September 7, 1990).

Section 101.22, Stats., does not expressly protect "cohabitants." Whether to add the word "cohabitant" to the statute is a decision for the legislature.